ISSUE 153 WINTER 2013 VicTORIAN The Formidable Sir By JD Merralls bar Legal Aid in news Chronic Decline Punch Drunk The Paris Bar The Law of Drugs in Sport A Study in Contradictions QC or not QC? IBAC A Sheep in Wolf’s Clothing?

153 The 2013 Dinner All the Highlights and Photos BAR MEMBERS... SAVE THOUSANDS ON ANY NEW CAR

Save time and money by buying your next new car Should you have a trade-in or require nance and through your own personal buyer’s advocate. insurance, your consultant will be able to ensure that Members can now enjoy the eet-buying power of MBA the entire process can be completed simply, with Car Assist. Vehicles are purchased at signicant savings maximum savings of your time and money. over the retail prices, whilst avoiding all the hassles and To ensure you’re getting the absolute best price for your upsells of the dealership sales process. We also arrange new vehicle, your personal consultant will include a all of the paperwork and keep you updated on the number of dierent dealerships (including your local) in progress of your vehicle’s preparation or production. the tender process, with each competing for your Your new car is even delivered to your home or work business. with a full tank of fuel. So how does it work? MBA Car Assist purchases new Are you looking to buy a new luxury vehicle from BMW, vehicles every week, which gives them access to eet Mercedes-Benz, Audi, Mini, Lexus, Jaguar, Land Rover or pricing. That discount is then passed on in its entirety to Volvo? Members will also enjoy the massive savings of you. Now that’s buying power! up to 5 years free scheduled servicing on these vehicles. For further information about this oer and more, log into the members area of www.vicbar.com.au and click on the Member Benets tile. Email info@mbabenets.com.au or call Divesh 0434 667 896 or Tony 0418 174 974 ISSUE 153 WINTER 2013 victorian bar

Editorial news Engaging with the Ethics Committee Bulletins Life & Lore of the Bar 3 61 Ethics Committee Bulletin No 2 of 2012 Around Town 61 Ethics Committee Bulletin No 3 of 2012 Opening of the Legal Year 4 62 Ethics Committee 2013Victorian Bar Dinner 8 Bulletin No 4 of 2012 One Great Big Happy Family 15 63 Ethics Committee Taking the Stick to 8 Bulletin No 1 of 2013 Barristers from the North 18 63  Ethics Committee Bulletin No 2 of 2013

News and Views From the Chair’s Table 20 Back of the Lift The Challenge of Improving 64  Adjourned Sine Die Access to Justice 22 68  Silence All Stand New Jury Directions 24 76  Obituaries Legal Aid in Chronic Decline 25 81 September 2012 Victorian Bar IBAC – A Sheep in Readers’ Course Wolf’s Clothing? 29 82 Senior Counsel 2012 QC or not QC? 33 20 85 Quarterly Counsel The Paris Bar — A Study in Contradictions 37 Why Say Yes? 40 64 Boilerplate That’s Sir Hayden Starke 42 86 A Bit About Words 2013 CPD Conference 88 Counsel’s Baggage — At a Glance 48 89 Gallimaufry 2013 CPD Conference 90 Verbatim — On Fearless Defence in 91 Red Bag, Blue Bag the Face of Public Outrage 50 93 Book Reviews 2013 CPD Conference — Hobnobbing at High Table 51 96 Out of Sessions Dining 2013 CPD Conference 99 Tracking Down the Trucks — A Word, or Two, to the Wise 52 100 Wine Reviews Launch of the Victorian Bar 101 Dusting off the Archives: 1963 Reconciliation Action Plan 54 85 101 The Bar Quiz Sport, Drugs and Doping Control 56 103 Ask Mr Tipstaff Boxing with Policy Shadows 58 The Collingwood Cup 60 ISSUE 153 WINTER 2013 VICTORIAN editorial bar Engaging with the news Become an Accredited Life & Lore of the Bar Editors: Sharon Moore and Justin Tomlinson Victorian Bar News Editorial Committee: Sharon Moore and Justin Tomlinson (Editors), The Editors Georgina Costello, Anthony Strahan (Deputy Editors), Advocacy Coach Louise Martin and Maree Norton Contributors: His Honour Magistrate Alsop, Richard elcome to the 153rd edition of Victorian Would you like to become an accredited advocacy coach and teach Attiwill, David Bailey, Simone Bailey, The Hon Chief Justice Bathurst, Denise Bennett, Sally Bodman, Timothy Bar News. in the readers’ course? Bourke, Richard Brear, Amy Brennan, Elizabeth Brimer, At the outset, it is incumbent on us as Julian Burnside, The Hon Stephen Charles QC, Michael Colbran QC, John Coldrey, Georgina Costello, Tom Danos, new editors to acknowledge the enormous Advocacy coaching focuses on the acquisition of core advocacy skills by The Hon Justice Dodds-Streeton, The Hon Mark Dreyfus contribution of outgoing editor Paul Hayes, QC MP, Fiona Ellis, Kurt Esser, Her Honour Magistrate observation and feedback with demonstration by the coach of the particular Fleming, Kathleen Foley, Guy Gilbert, Michael Gronow, whose last edition (152) was an excellent skill to be taught. Her Honour Judge Hampel, Justin Hannebery, Robert collection of worthy material. Paul was appointed editor in April 2009 Heath, Peter Heerey AM QC, Sara Hinchey, Dr Jacqui and he edited (either with co-editors or on his own) six editions during Horan, Ben Ihle, Diane Jacobson ( Hebrew W Although many of our coaches have a great deal of experience, both as Congregation Magazine), The Hon Justice Keane, Tony his time as editor. His contribution to producing this journal of the Bar, Lewis, Paul Liondas, Louise Martin, Richard McGarvie SC, in terms of effort and time devoted, cannot be overstated. advocates and as coaches, training ensures consistency in the quality Glenn McGowan SC, Fiona McLeod SC, James Merralls AM QC, Simon Moglia, Sharon Moore, Debbie Mortimer SC, As incoming editors we have sought to enhance all that Victorian and method of coaching. Even if you have trained to be a coach before, Ross Nankivell, Anthony Neal SC, Keith Nicholson, Maree Bar News has offered, as well as to look forward and offer even more. Norton, Rob O’Neill, Max Perry, The Hon Justice Robson, We wish to attain something, which, although it may seem grand, you may like to refresh and consolidate your coaching skills. His Honour Chief Judge Rozenes, Adrian Ryan SC, Tim Seccull, Sam Stafford, Anthony Strahan, Helen Symon SC, is nonetheless important. That is, to engage the Bar in a conversation Justin Tomlinson, Brian Walters SC, The Hon Chief Justice that will inspire and develop the profession. Our profession is Warren AC, Michael Wheelahan SC and Michael Wyles SC. a grand institution. It deserves to be treated with respect and also Photo contributors: Fiona Basile (Kairos Catholic Journal), Peter Glenane, Justin Hill (Jason Zorzut to be challenged. For it is only with challenges that a thing tests Photography), David Johns, Tira Lewis, Stephen Reynolds and strengthens its mettle. We hope to attain this by increments, The Bar runs advocacy coaching workshops and Paul West. but to attain it nonetheless. Cover illustration: Guy Shield twice a year, in March and August. Our hope is to have Victorian Bar News not be merely a vessel to Publisher: The Victorian Bar Inc. Contact Jacqueline Stone for more details Chambers, 205 William Street, Melbourne record events, which are important nevertheless, but also to inspire 3000. Registration No. A 0034304 S. intellectual engagement by barristers in the institution of the Bar. This publication of Victorian Bar News may be cited T 9225 7916 as (2013) 153 Vic B.N. Opinions expressed are not This means taking a reflective look at our past as well as wrestling E [email protected] necessarily those of the Bar Council or the Bar or of with issues in our present and looking interestedly at our future. any person other than the author. To the best of our There are articles from venerable contributors, including J D Merralls, knowledge, the information in this magazine was correct at the time of printing. Stephen Charles QC and Peter Heerey QC. In addition, this issue has Advertising: been honoured by contributions from Chief Judge Rozenes, and Federal All enquiries including requests for advertising rates Attorney-General, and member of our Bar, Mark Dreyfus QC. to be sent to: There are articles on some of our members who are drawn Ms Sally Bodman to professional appointments outside of the Bar; the legal issues The Victorian Bar Inc. 205 William Street, Melbourne 3000 surrounding drugs in sport; reports of the third annual CPD Tel: (03) 9225 7909 conference; and a reflective look at our system of advocacy in an Email: [email protected] international context, as Amy Brennan reports back on studying Design and Production: The Slattery Media Group; www.slatterymedia.com; [email protected] the methods of the Paris ‘Bar’ at L’Ecole du Formation du Barreau Contributions: All contributions to Victorian Bar de Paris. We also commend to your attention the excellent News should be in word format and are to be emailed contributions to the ‘Back of the Lift’ section. to [email protected]. All articles submitted for consideration for publication in Victorian Bar None of what the Victorian Bar News is and could be is possible Review should be word format and conform to the without your contributions and the hard work of the editorial style guide prescribed by the Australian Guide for Legal committee (Georgina Costello, Anthony Strahan, Louise Martin, Citation (http://www.law.unimelb.edu.au/files/dmfile/ FinalOnlinePDF-2012Reprint.pdf) Maree Norton and Denise Bennett and Sally Bodman from the Bar office), for which we are very grateful. This is your journal. Of your life and lore of your Bar. We hope it engages you. The Editors

The editors: Sharon Moore and Justin Tomlinson VBN 3 Around ICJ ’s Community Opening of the Legal around town Year, Waldron Hall, Tow n County Court

ICJ Victoria’s Community Opening of the Legal Opening of Year, Waldron Hall, prison), two Kew High School year 12 students and County Court Chief Justice of the Family Court, Diana Bryant AO. Chief Justice Warren AC attended as the event’s patron. the Legal Year The event was hosted by Justice Lasry (President of ICJ Victoria). Aunty Briggs led the Welcome to Country and expressed her pride in Melbourne’s rich indigenous history Justin Tomlinson and how many have started to recognise the need for reconciliation. Professor Norden strongly advocated for owadays it might be thought that there is no real need the abolition of capital punishment around the world. for a ceremonial opening of the legal year. Courts do not Chief Justice Bryant then spoke about the importance of break for lengthy vacations as they once did and terms the rule of the law and contrasted ’s experience photos by peter glenane N are hardly recognisable. with that of some of her overseas colleagues in trying to above and TOP: Why then have a ceremonial opening of the legal year? maintain judicial independence. St Paul’s Cathedral Left: The Dean of One ready answer is that it is a chance to reflect on the At the Melbourne Hebrew Congregation (Toorak Melbourne the Very profession’s place and role in the community. The legal arm Synagogue) about 100 attendees, made up of judges, Revd Dr Andreas Loewe of government is bigger than business. The profession takes magistrates, barristers and solicitors, attended a service time every year to pause and give thanks, seek solace and conducted by Rabbi Avrohom Jacks and Rabbi Doivn reflect on the greater obligation owed to the community, Rubinfeld. Short prayers were offered and readings beyond the aspiration to individual profit. from the Torah were made by Justice Sifris, Chief Judge So this year, on 29 January, the profession, the judiciary, our Rozenes AO, Judge Lewitan and barristers Henry Jolson own arm of government, opened the legal year with religious OAM QC, Simon Rubenstein, Oren Bigos, Renee Sion and and non-religious ceremonies. Roslyn Kaye. Prayers were offered that as the legal year The International Commission of Jurists Victoria held its sixth commenced, practitioners (and the congregation at large) Community Opening of the Legal Year, convened at Waldron ought dedicate themselves to the ideal of natural law. Hall at the County Court. Speakers at the non-religious event The Red Mass was held at St Patrick’s Cathedral in included Aunty Carolyn Briggs, Professor Peter a service led by Archbishop Denis Hart. Special guests Norden (formerly chaplain of Pentridge attending the Red Mass included Justice Crennan AC,

4 VBN VBN 5 Melbourne Hebrew Congregation around town

Chief Magistrate Lauritsen, Michael McGarvie Justice Crennan AC (Legal Services Commissioner), Bevan leads the judiciary to The Red Mass, St Warner (Chair of Victoria Legal Aid), Geoff Patrick’s Cathedral around town around Bowyer (President Elect LIV), Jim Peters SC (representing the Bar) and former Governor of Victoria Sir James Gobbo AC CVO KStJ QC. In his homily, Bishop Elliott (brother of Paul Elliott SC) invited those gathered to reflect on their own journey of faith as men and women who serve the law. “What you do, how you serve people through the law each day, is the work of God,” he said. The Ecumenical Service was held at St Paul’s Anglican Cathedral and was presided over by the Anglican Dean of Melbourne, the Rev Dr Andreas Loewe. The President of the LIV (Reynah Tang)

and Vice-Chairman of the Victorian Bar, Will photos courtesy of fiona basile/kairos catholic journal Alstergren SC, read lessons. This was the last The County Court judiciary opening of the legal year service of Dr June Nixon AM who, the very next Sunday, retired after more than 40 years as Organist and Director of Music at St Paul’s.

Henry Jolson OAM QC With thanks to Glenn McGowan SC; Fiona reads from the Torah Basile/Kairos Catholic Journal; Diane Jacobson/ Melbourne Hebrew Congregation Magazine; Ross Nankivell

Paul Elliott QC leads members of the Bar to the Red Mass, St Patrick’s Cathedral

Melbourne Hebrew Congregation photos by stephen reynolds stephen by photos

6 VBN VBN 7 2013 Victorian 2013 victorian bar dinner University’s dedication to learning. Bar Dinner The phrase “saeviter aratus” might be rendered idiomatically as “No stone unturned” — and that Myer Mural Hall would be a peculiarly apt motto Friday 24 May 2013 for the Victorian Bar. Certainly no-one from the other Australian Bars would ever accuse Victorian barristers of leaving any stones unturned. In times past, cases Speech delivered by the Hon Justice Keane that elsewhere would take three days could here take six. And the idea “fiat justitia ruat caelum” — let justice be our Excellency, Mr Attorney, and lawyers were very much like their British Commonwealth done though the sky may fall — has Colleagues. cousins, the Canadians: competent, polite, responsible, always seemed to have greater appeal Thank you very much for inviting reserved and modest; and quite unlike Australians who to Victorian lawyers than to those of When New Zealand’s Sir Robin honest race: they seldom speak well me and for doing me the honour of are the lost tribe of Texas. us from civilised but more pragmatic Cooke was appointed to the House of each other.” asking me to speak to you. He was talking about you Victorians, too, you know. parts of the country. of Lords, he stopped signing his Well, tonight, I would like to speak Tonight, I would like to say something Even at the time, I thought that was a little unfair on you. The Victorian Bar with its passions correspondence “Robin Cooke” and well of Sir Maurice Byers, a New South about our profession; and by that I mean the profession Melbourne is, with Adelaide, Australia’s most civilised city. and ructions and eruptions has always began affecting the signature “Cooke Welshman who distinguished himself

Yof the Bar to which, as Francis Bacon said, each of us is One of the treasures of civilisation that Victoria has given photos courtesy of justin hill of zorzut.com.au been the Bar militant. It tends to put of Thorndon”. Sir , by speaking well of Victorians. accounted a debtor. the world was Owen Dixon. the rest of us in mind of Goethe’s having received a letter so signed But first I want to speak of Sir I realise that my choice of topic reveals little in the way I was recently reading “Jesting Pilate” again, and noted comment about the Germans: “They asked Sir whether , a New South of imagination. I will talk about some old Victorian lawyers that on the occasion on which Sir Owen Dixon was awarded make so much trouble for themselves he should change his signature to Welshman who spoke well of — and a couple of New South Welshmen. an honorary degree of Doctor of Laws at the University — and for everyone else.” “Mason of Mosman”. Sir Gerard virtually nobody. I justify that radical addition on the basis that it is one of Melbourne in 1959, he spoke warmly and fondly of his I pause to note that I have already replied: “No, people will think you’re There was unveiled earlier this year of the chief glories of our profession in Australia that each time at the University and particularly of Professor Thomas used two Latin expressions. I fear that a used car salesman.” in the public spaces of the High Court Bar has its eccentrics and eccentricities while we continue George Tucker and Sir William who had I will have affronted Chris Maxwell May I also say on behalf of building in Canberra a new portrait to share an abiding underlying unity of identity. greatly influenced him while a student. who, as you know, is against the use my judicial colleagues that the of Sir Garfield Barwick. Australian lawyers generally seem to have a unique What caught my eye in Dixon’s speech was his of Latin in public places. He will not unremitting grind of our never It is an informal portrait of the reputation abroad for robustness. When I was last at a reference to the Latin inscription that used to appear be happy until, stripped of their diminishing lists means we long ago great man. It is huge and quite meeting of the American Law Institute, Dame Sian Elias, on the stones in the cloisters. The inscription read beautiful Latin dignity, your State’s ceased to worry about vanities, such lifelike. Unfortunately, it is also quite the Chief Justice of New Zealand, was being introduced. “saeviter aratus” – savagely ploughed. name is “Victory”, and our country as our place in the history books and frightening. It looks like the portrait The master of ceremonies explained to the international It struck me, as it obviously also struck Sir Owen, as a is called “the southern place”. whether our judgments will be read of Vigo from Ghostbusters II. audience that they should understand that New Zealand’s remarkably vivid description of the rigour of Melbourne No English words are really adequate in fifty years’ time. Our colleague, , tells me to render the passion in the Latin I don’t pretend to speak for the that, since the unveiling, the number expressions I have mentioned, and female judges, but I can say on behalf of weekend visitors to the building has while I have no sympathy for Chris’ of the male judges that we know full halved. I predict that the picture will desire to eradicate the use of Latin, well that the best that we can hope for become known as “Gar the Impaler”. I can understand his concern that in fifty years’ time is that people will Many of you will not remember we should not be seen say: “Isn’t it marvellous that he’s still Sir Garfield on the Bench. Those to be indulging ourselves in vanities. sexually active.” of us who appeared before him

Some think that the use of Latin is There are very real differences remember him as a brilliant judge photos courtesy of justin hill of zorzut.com.au just one of the many ways in which between the Australian Bars, and the who had been the leader of the we as a profession indulge our own local eccentricities they have inherited Australian Bar and who, as a judge, high opinion of ourselves. I noticed in over time. Notwithstanding these wrote beautifully lucid judgments. The Australian newspaper of April 12 differences, we should be capable of In his last few years, he was also a slighting reference by that journal’s recognising the merit in each other, perhaps the leading exemplar of legal affairs writer to “the status-mad just as we are capable of recognising the angry old man school of judicial world of the judiciary”. the unity of our common ethical deportment. May I say, on behalf of my judicial purpose. Some of the eccentricities of It was a school which was very colleagues, that I have never detected the Victorian Bar derive from its Irish strong in the New South Wales Court any obsession with status among roots. Those roots are deep here; and of Appeal. It had very active local Australian judges. Poverty perhaps, I find that something of an inspiration. branches in the other states as well. but not status. I rather think that You will all recall what Dr Johnson Those days are, I think, gone, and that that has long been the case. said about the Irish: “The Irish are an is a very good thing.

8 VBN VBN 9 2013 Certainly no-one from the other Australian Bars would ever practise in that field. That increase in that more than a third of the current The professionalism of the Victorian economic power poses a significant vacancies have been declared Australian Bars has always been Bar Dinner accuse Victorian barristers of leaving any stones unturned. In times past, cases that elsewhere would take three days could threat to our professional independence. “judicial emergencies” based on court such that our advocates are not, and Myer Mural Hall Just as the tyranny of the billable workloads and the length of time that are not seen, as mere mouthpieces Friday 24 May 2013 here take six. And the idea “fiat justitia ruat caelum” — let justice hour has blighted the professional lives the seats have been empty. for the client, mere spear-carriers be done though the sky may fall — has always seemed to have of a generation of solicitors, we are in The problem is due to the for agenda pursued by others. With danger that the American model of law unwillingness of the United States us, professional advancement does greater appeal to Victorian lawyers than to those of us from as a business will subsume the Bars. Senate to confirm presidential not depend on identification with a civilised but more pragmatic parts of the country. Your Chief Justice and my appointments for reasons described by powerful client. colleague Justice Kiefel have both the New York Times editorial board as And the professionalism of Appearing in the courts presided I apologise; but I distinctly thought was not then and is not, I think, spoken on this topic recently. Tonight, “politics, ideology and spite”. our judges is fostered, in turn, by over by the angry old men of whom I heard the Court Crier say when he now the case with the High Court.” I would like to add my voice to theirs The most striking example of the the standards inculcated by their Sir Garfield was primus inter pares opened the Court just now: ‘Give your I should not wish to verbal Sir to emphasise the vital importance of judicial emergency in the U.S. Federal experience at the Bars, where put one a little in mind of Churchill’s attendance and you shall be heard.’” Maurice, especially posthumously, but maintaining the professional ethos Courts is afforded by the prestigious they are acculturated to regard description of the Royal Navy in He then proceeded to make his it is clear that he was paying a real we share to maintaining the trust and and important United States Court of themselves, first, last and always, Nelson’s time, that is, a place of “rum, argument without further interruption. compliment to the influence of the confidence placed in us by our clients Appeals for the District of Columbia as officers of the Court. sodomy and the lash.” And, finally to get to my point, Sir Victorian lawyers on the High Court, and fellow citizens. Circuit. It is an important feeder to the By professionalism, I mean, Compared to those angry old men, Maurice had a soft spot for Victorians. in their insistence that principle, rather It is that independent Supreme Court of the United States. first of all, the crucial difference even Churchill himself appears to be In a famous speech given by Sir than pragmatism, should prevail. professionalism which makes the best It decides most appeals from federal between competence and mere an endearing character. Churchill is Maurice after 50 years at the Bar, he He was, as the consummate barristers, and also, in the end, makes regulatory agencies and exercises self-confidence. The former can only not well remembered in this country, spoke of the time when the Victorians, professional advocate, paying tribute an unelected judiciary acceptable as exclusive jurisdiction over national be gained by dedication and hard but he did have some endearing Latham CJ, Starke and Dixon JJ to the abiding professional ethos that the third branch of government in security matters. work. It is the ability and willingness moments. When he turned 90 he said: dominated the High Court. Sir Maurice doing justice is our only business and a democracy. of our advocates to engage in the t is an eleven seat court; four of “People say to me: ‘Who would want to spoke of the fierce Sir Hayden Starke, to the great Victorians who embodied With the all-rounders becoming rigorous, and often tedious, process those seats are vacant, and the last live to be 90 years of age?’ I say on the one occasion on which Sir the great ideal expressed in the maxim ever more rare and specialisation I of ensuring that the facts are time that the Senate could bring itself to them: ‘Anyone who is 89’.” Maurice appeared before him, sitting “fiat justitia ruat caelum”. accelerating, the professional marshalled and presented in the to agree to confirm an appointment And in 1940, after he returned to “wigless and radiating menace”. That deep devotion of members independence of the Bar remains most efficient way and that a given was in 2006. the Admiralty, one of his senior civil Sir Maurice described Sir John of the Victorian Bar to the cause all the more essential to the survival legal issue is turned over and looked In this sclerotic failure of process, servants, observing that Churchill did Latham as being scholarly and dryly of justice, whatever the cost and of the Bar and, in turn, to the due at from all sides, that identifies the we are witnessing the pathology of the not wash his hands after urinating, humorous. He described Sir Owen inconvenience, goes back from Dixon administration of justice. competent barrister. separation of powers, as the attitude said: “Sir, at Eton we were taught to Dixon’s “angular face shining with and Fullagar and Menzies, to Isaacs Notwithstanding the complaints And secondly, I refer to a dedication of the legislative branch for the wash our hands after using the urinal.” vivacity, intelligence and a unique and Higgins and forward to the late of the shock jocks on radio and the to the clients’ interests above a concern executive’s nominees to judicial office Churchill replied: “At Harrow, they Mozartian charm”. Ron Castan and to today’s Victorian tabloid press, the administration for the success of one’s own business, sours from a healthy but respectful taught us not to piss on our hands.” Sir Maurice went on to make some barristers who, pre‑eminently in of justice in this country is very but not a dedication which slides scepticism to a jealous suspicion of Sir Garfield Barwick represented observations which were not entirely our nation, continue to ensure successful in terms of the maintenance into subservience to the client at the lawyers who have no professional the negative pole of the spectrum to the credit of the judges of New that great issues do not want for a of public confidence. expense of the advocates’ primary identity independent of their clients for of human endearment. South Wales as compared to the judges hearing because the client wants for One reliable practical measure of duty to the court. Independence does whom they will do and say anything At the other end of that spectrum, of Victoria. money. Thanks to Victorian barristers the level of public confidence is that not mean merely independence from short of committing an actual crime. and certainly the most endearing New like them justice has been done in judicial appointments in this country the State; it also connotes a degree e mentioned an incident when That we have avoided this appalling South Welsh barrister I encountered, Australia, and continues to be done, almost invariably attract bi-partisan of independence from the client. the great Sir state of affairs is, no doubt, due was Sir Maurice Byers. He was, by H no stone has been left unturned, and support. That state of affairs stands in Maintaining that independence is CJ had occasion to sentence to death to a number of factors, structural

any measure, the most successful the sky has not fallen. marked contrast with the United States a challenge; but in maintaining it, photos courtesy of justin hill of zorzut.com.au a man convicted of murder. Having and cultural. But I would venture advocate of his time and he was a Although Sir Maurice’s legend where, at the federal level, the executive we maintain the very thing that gives passed sentence and removed his the suggestion that, vital among great gentleman as well. depends on his success in and legislature struggle to agree on us our edge, and thereby ensures black cap, Sir Frederick absent- these is the professionalism which Sir Maurice was a master of the soft constitutional cases, he was a great appointments to the federal bench. that we remain indispensable. mindedly ordered that the costs of characterises the work of our Bars word that turns away wrath. On one all-rounder, and as I have said, the On 6 April, the New York Times May I conclude by commending all parties should be paid out of the and our courts. occasion, he was halfway through the consummate professional. reported that, of the 856 federal to you the preservation of the model deceased’s estate. opening sentence of his address in the It is, I think, a sad thing that ever district and circuit court seats in established in the relationship between More importantly, Sir Maurice High Court when Barwick CJ cut him narrowing specialisation has made it the United States, 85 are unfilled. the Inns of Court and the Courts at spoke of the Supreme Court of off to point out the difficulties in the difficult for a barrister nowadays to The problem is getting worse. That Westminster, whereby the judges and New South Wales as having “long argument he apprehended Sir Maurice sustain an all-round practice. These days ten per cent vacancy rate is nearly the Bar share a common experience of favoured a form of pragmatism intended to put. Sir Maurice began the furrows we excavate are ever deeper, double the vacancy rate at the professional development, and whereby where the likely social or legal again, only to be halted again by a blast but much narrower than in times past. beginning of President George our advocates regard themselves first disturbance that new ideas might from the Bench. The narrower our specialty, the greater W. Bush’s second term. and foremost as officers of the court give rise to become the test of their At this point, Sir Maurice chuckled the economic power of the client, and The problem is now and all of us as servants of justice. validity.” He went on to say: “That amiably and said: “Your Honour, its solicitors, over the barristers who of such long standing Thank you for your attention.

10 VBN VBN 11 2013 1 2 3 4 Victorian Bar Dinner Myer Mural Hall Friday 24 May 2013

7

6

1. Will Alstergren SC, Fiona McLeod SC and Jonathan Beach QC ready to greet guests 2. John Langmead SC and Graham Fricke QC 3. John Richards SC and Fiona Forsyth 4. The Hon Justice Dessau AM and Patricia Byrnes 5. Nicki Mollard, Robert Williams, Jaclyn Lontos, Kieren Mihaly and Gemma-Jane Cooper 6. Paul Duggan 7. Mara Ray and Ross Ray QC 8. Kate Anderson 9. His Honour Judge Brookes enjoying the speeches 10. The Magnificent Myer Mural Hall 11. The Governor, 8 9 the Hon Alex Chernov AC QC 12. Andrew Di Pasquale, Ben Jellis, the Hon President Maxwell, Carolyn Symons, Jennifer Collins and James Hooper 13. John Coldrey 5

10

13 photos courtesy of justin hill of zorzut.com.au

12

11 12 VBN VBN 13 1. Phoebe Knowles 2. Simon 2013 2 3 Victorian Molesworth AO QC 3. Jim Peters Bar Dinner SC, his Honour Judge Cosgrave and One Great Big Caroline Kirton SC 4. The Hon Justice Myer Mural Hall Priest 5. Richard Niall SC and Jack Friday 24 May 2013 Fajgenbaum QC 6. Peter Little, Terence Guthridge, Nicholas Jones, Happy Family Ian McDonald and Brian McCullagh 7. The Bar Band 8. Hayden Rattray Speech delivered by Debbie Mortimer SC and Nicole Papaleo hit the dance floor 9. Hayden Rattray takes another partner - Fleur Shand – for a spin our Excellency, I’m pretty confident the 1-0 politics 10. The Chair and Vice Chair cutting Mr Attorney, scorecard will remain, in the singing 1 up the dance floor 11. Sarah Lean distinguished department at least. and Kieren Mihaly show their style guests, and colleagues. Second: religion. And a special Why is it that cases about religion 4 5 greeting to my Clerk, John Dever. always go on for ever? Since 2007, Y(We are well brought up on Dever’s I’ve been acting for same sex attracted list, you see.) young people who wanted to go The weeks leading up to this have camping on Phillip Island and, they photos courtesy of justin hill of zorzut.com.au been filled with people giving me alleged, were refused accommodation advice, telling stories about awful at a camp run by the Christian speeches and memorable ones. Brethren. The case is now reserved Last week at the Readers Dinner before the Court of Appeal. But I heard the Governor describe how the irony of all this is that I am not an empty bottle of wine was thrown religious, so facing two theologians 6 at one speaker, and I have my own and a number of Christian pastors memory of one junior silk who donned all giving evidence about what the helmets, top hats and even a G-string Bible said on homosexuality, I used a during his speech. “Bible Cheat Sheet” prepared by my Don’t hold your breath. hardworking juniors who knew more Plenty of people have told me about the Bible than me. I hope my use photos courtesy of justin hill of zorzut.com.au that the principal convention on an of that cheat sheet wasn’t too obvious occasion such as this is that one should to my opponent – his Honour Justice not talk about sex, religion or politics. Gregory Garde of the Supreme Court

7 11 As you might know, I am a stickler and an honoured guest tonight. for convention. I always do what I am told. So, let me start with politics Marriage equality... Wait. All I am going to say is this: NZ – 1 Australia – 0 8 9 10 Now you might think I’m talking about marriage equality laws. Well, you might think that. In fact, I’m talking about singing in Parliament. On the passage of the marriage equality legislation in NZ recently, the NZ Parliament, both the gallery and parliamentarians, erupted into the beautiful Maori love song “Pokarekare Ana”. Now imagine, our politicians here singing in Parliament after the passage of legislation.

14 VBN VBN 15 2013 victorian bar dinner 2013 Like all families, we squabble. We have our scandals and our triumphs. We never Victorian have enough quality time together. But we come together once a year, to share food Bar Dinner Myer Mural Hall and listen to speakers and feel a sense of common cause and celebration. Like all Friday 24 May 2013 families, we are basically pleased to have a shared history and a shared future.

Beyond the teenagers are the cryptic crossword and consulting is godfathers – no, not THAT kind twenty-somethings. At this stage, the 20-volume edition of the Oxford of godfather – the religious kind of these members of the Bar’s family English Dictionary will be the godfathers and godmothers. are getting comfortable. They know public law barristers. Helping to Our godparents are there to guide, the way the family works, who to set the table, volunteering to peel inspire, and show us the truth, the schmooze, who to avoid, they know the potatoes, and generally being way and the light. Impose a little their way around the neighbourhood, supportive, will be the pro bono discipline from time to time. Giving indeed they are often out alone these and human rights barristers. All gentle reminders of what idiots their days, although they do spend rather a those goody two-shoes members godchildren can be. Occasionally, we lot of time locked in their rooms: of the family. find godparents a little scary – they’re »» image is all. The clothes, the hair, In another room, arms folded, deep always perched up higher than us, the accessories, the body… in conversation, are the various long they dress a little strangely, and they »» they are networking constantly, suffering parents, trying to keep the rarely let us finish our sentences. who’s hot to be led by, and who’s not, family afloat, hold it all together and They are especially godlike when what are the coolest cases to be seen out of trouble, scraping together the they gather in groups: groups of three in, how to avoid cases which might money necessary to afford a good being moderately imposing, groups have you labeled as a loser quality of life, putting their lives on of five or – the good Lord protect us These are the senior juniors, hold to work for the betterment of the – seven, being rather overwhelming. of course. family as a whole. Colleagues, I give It is especially exciting when we Thirdly: sex One suggestion is the symposium at getting some food on it, and into Then, sitting on a designer couch, you: the Bar Council. have to travel interstate to Canberra Do you think I’m really going to speak in Ancient Greece. Reliable Google their mouth? That’s a bit like how baby with a glass of good wine in their Then there are the in-laws. The for special family visits with the about sex? translations and Wikipedia tell us barristers approach their briefs – finding hands, reading the New Yorker on in laws are often from interstate. godparents – a “gathering” of Well, all right. Just a little bit. I’ll “symposium” means “to drink together”. a bit of evidence, what do I do with this? the iPad, are the thirty-something Specifically, north. Probably, . godparents whose task is to provide tell you about alpacas and sex. Not A symposium was then, a bit of a Aims, fires, misses, bits of evidence members of our family: They just come barging in, as in-laws us with truly religious experiences. in too much detail, although they are drinking party. Sounding familiar? slopping around the sides, not quite »» feels like they’re arrived where they sometimes do. Well brought up as But like all godparents, we treasure remarkable creatures and there is a lot It was for men only of course (well we there but in the right general direction. want to be. we are, we offer them a cup of tea, them. And they, in turn I am sure, that could be told. But a notable feature have fixed that one) – a forum for debate, Gradually the tag of‘ baby” is cast »» a tad too much pressure on the and we explain to them that, in this treasure us. of alpaca mating rituals is the behaviour for recounting triumphs, celebrating off and we become simply a “junior”, mortgage, tad too little sleep at night, family, while watching the correct Like all families, we squabble. of the female alpaca. Female alpacas are special occasions. still bottom dwelling in many respects, but basically the midriff is expanding code of football you don’t stand up We have our scandals and our induced ovulators, so they are, shall we Those attending would recline on but at least on the way through school, a little ahead of the bank account but and scream at the umpire, nor thump triumphs. We never have enough say, always interested. Except when they pillowed couches set up against the walking confidently and generally both are doing quite nicely. Uncle Harry who is supporting the quality time together. But we come have ovulated and conceived, and then walls. Food and wine were served. There able to speak. With their playmates, »» and other people in the family are opposite team. The last straw being together once a year, to share they are no longer interested, and we was entertainment, or flute-boys. or brothers and sisters, these juniors starting to remember their names. that these in-laws just will not take food and listen to speakers and can tell this because when you bring the And here, close on 2500 years later, form a bit of a gang, hanging around, Of course: the new silks. their own empty cup out to the feel a sense of common cause and keen male alpaca close such a female, we still share food, and thoughts through watching the big kids.

Now from here on, as in life, we kitchen but have to have a junior celebration. Like all families, we are photos courtesy of justin hill of zorzut.com.au she will spit at him – not just a polite speech making, on many special But still unable to share toys – know its all down hill and its getting to do it. But like all patient relatives, basically pleased to have a shared dribble, but a good cup full of putrid occasions – perhaps not as in Ancient “No, the clerk promised ME that brief too close to my part of the family we smile for the sake of the extended history and a shared future. green bile, from all the way down in Greece, but more as a family might. in the Practice Court”. anyway, so I invite you now to look with family relationships as we wave As the diversity of our Bar, and her gut. I always thought that was a Let’s talk about this family. Next we see the teenagers, slightly me at our family in other ways. them away. our judiciary, increases, so this handy attribute to have available. Like any family, the Bar has its swaggering as teenagers do. Imagine a family gathering… I come now to a most significant family should look forward to better generations. When people come to the These are the mid-level juniors, »» Standing over the barbecue outside, part of our family. If I were to call reflecting the community in which we Moving now to being Bar, we call them “baby” barristers, not yet sweating over when to apply possibly smoking – and probably them grandparents, I would receive live, and facilitating the advancement no matter what their age. The adjective for silk, cash flow more or less under moderately more serious… plotting – would be members of the complaints from those of them of all our members on merit alone, aptly describes not only their place in control, texting on their phone while In preparing for tonight, I thought criminal Bar. clearly not old enough for that without favoritism and without the family, but the experiences which their opponent is making boring about this tradition of having »» Reading the Fin Review in the lounge description. discrimination. And we might look await them. submissions, finally emerging from speeches at dinners. Where might this we have the commercial Bar. I speak of course, of the judges. forward to trying to better tolerate Baby experiences like learning to the need to have a permanent combination of gathering together, »» Gathered round the table, waiting for Part of the family but somewhat our in-laws. manage food. Have you seen how parking space at the Heidelberg sharing a meal, and listening to lunch, we have the common law bar. estranged. I wouldn’t dare call With the guidance, if your Honours babies take their spoon and work hard Magistrates Court. speeches come from? »» In the library, poring over the them divorcees. Maybe the closest please, of our godparents.

16 VBN VBN 17 around town around town around

Defeated but not downhearted: the NSW Bar team

Both teams were extremely grateful Perhaps over-confident (not an unknown quality for the sponsorship of Kaleidoscope for New South Wales barristers), the northerners Taking the Stick to Legal Recruitment. Paul Burgess from Kaleidoscope played for the LIV and were never in the game. also organised welcome after-match refreshments. from the backline, and O’Neill, Dever and and this time continued to score at Barristers from the North Two days later the team ventured Robinson all played well through midfield. It regular intervals; the final result was north to face the New South Wales team, has to be conceded that the ring-ins also all a 7-0 thumping. which had thrashed us on its visit to Triumphant Turnaround for Vic Bar Hockey. Rob O’Neill and Richard Brear played a role! Perhaps over-confident (not Despite the shellacking, New Melbourne the previous year. Making the an unknown quality for New South Wales South Wales was gracious in defeat trip to the terrific new venue, the Cintra barristers), the northerners were never in and hosted us to a terrific dinner at he Victorian Bar hockey team had a dominant Samson and Andrew Howell. Support from the hockey pitch in Concord, were Wood SC, the game. The Vics once again scored early, Dolcissimo in Haberfield. Many thanks season in 2012, turning the tables on both the New sidelines came from Richard Brear, Jennifer and her Gordon, Brear, Robinson, O’Neill, Michael to the team’s captain/ South Wales Bar (in Sydney) and the Law Institute husband Steve, and the Wood family. Dever, and debutant Keith Kendall. The T organiser Andrew of Victoria for the first time in nine years. The Bar was fighting history, having won the cup travellers were bolstered by some non- Scotting who The victors: back The team was led by new captain/coach/organiser only five times since it began in 1984, but led off barrister friends of the NSW team and arranged the dinner row (l-r): Chris Stuart Wood SC, who replaced Federal Magistrate the scoring. The LIV fought back but was never able took to the field with a full quota of 11. Gregg (NSW), Ross as well as a good Gordon, Nicholas Burchardt after many years as leader. We first to equalise as goals rained at both ends. Gordon Kendall, who claimed not to have played ground and a well- Griffin, Geoff Grant faced the LIV in the ‘Scales of Justice Cup’ at the (2 goals) and Howell (2 goals) finished off fine work since schooldays some years before, was (NSW), Keith organised game. Kendall, Rob O’Neill, Hawthorn/Malvern Hockey Centre. The team was from the Batrouneys in midfield, while Wood and a revelation, controlling the ball at inside We look forward to Stuart Wood SC, Wood SC (C), Nick Tweedie, Andrew Robinson, Rob Clancy were steady and creative in defense. The and feeding the forwards including Gordon, Andrew Robinson, seeing the New South Michael Dever front O’Neill, Stephen Sharpley (GK), Barnaby Chessell, final score was Bar 5, LIV 4. The game was well who was again among the goals. Brear took Wales team back in row (l-r): Richard Ross Gordon, Mark and James Batrouney (sons umpired by our regular officials Tony Dayton and the goalie’s pads and kept a clean sheet; Brear, Simon Morse Melbourne next year. (NSW) of Jennifer Batrouney SC), Richard Clancy, Craig Mark Fisher. Wood was again reliable directing play

The scoreboard tells the story 18 VBN VBN 19 news and views News ViewsAND

From the Chair’s Table

Fiona McLeod SC Chair of the Bar Council

s this edition of Victorian Bar News goes to press the new Bar Council will have been up and running for more than six months. has responded to these restrictions the support of instructors, contrary work and promote our members It has been a remarkable time for me and by attempting to shift funds from to our own ethical rules, how do we skills in this field. With recent for the new Bar Council with hardly a one area of demand to another. maintain the key strengths of the Bar promising developments in the moment to catch our breath. It is a great While this is understandable, the – our independence; our adherence Australian jurisprudence on this honour to serve the Bar in this capacity. debate that has raged through the to the ‘cab rank rule; and our mastery topic2 we should be well placed to AFirst I must thank the retiring Bar Council members and in press suggesting the quality of legal of advocacy and trial strategy? promote Australia as a source and particular Chairman Melanie Sloss SC for her efforts last year. representation is the real issue is These questions and more were destination for this important work. It would have been physically impossible for her to have devoted entirely misplaced. Victoria has pondered during the Bar annual Civil and commercial work in the more time and energy to the task of leading the Bar and I thank her a proud tradition of fairness and conference held in March. Associate State remains strong, with litigation for her extraordinary contribution. I also thank retiring Bar Council justice in our courtrooms. Professor Rufus Black presented bouncing back from a temporary members Jack Fajgenbaum QC, Matthew Walsh, Kate Anderson, Kim a session The Modern Bar under slump in issuing after the GFC and a his is best supported by a Southey, Andrew Downie and our retiring Honorary Secretary Bree the Microscope urging us to explore strong capacity in both the State and strong independent Bar Knoester. The new Bar Council was elected in mid November and we T ways to build work for the Bar Federal Court commercial lists. In properly instructed by competent were soon into the new term with the appointment of new silks in late including reasserting our expertise order to build upon the opportunities solicitors. It has been said that other November and retirements and new appointments to the judiciary. in advice work in complex matters; presented by economic growth, the States cope without instructors, In a little over six months we have recognised the retirement of strengthening direct relationships Bar needs to develop a long term and that courts can cope with long serving and distinguished judges – Bernard Bongiorno AO and with corporate and government vision for the legal market and unrepresented parties appearing David Habersberger and welcomed new appointments including clients; being receptive to feedback support the continued investment in before them, but at what cost in the Justices Stephen Gaegler and to the High Court, and opportunities for coaching; commercial legal services that are long term? Cases involving serious Chief Justice James Allsop to the Federal Court, Justices John and following economic trends to likely to bring legal work to the Bar. criminal conduct, accusations of Digby, James Elliott, Tim Ginnane and Associate Justice promote Victoria as a jurisdiction And with the launch of the Bar’s family violence and the protection Mark Derham to the Supreme Court, Justice Jennifer of choice for issuing civil litigation. own Reconciliation Action Plan of children are complex. Clients are Coate to the Family Court (and as a Royal Commissioner), One particular recommendation we have recommitted ourselves facing the extreme pressure of a Justice Judy Small to the Federal Circuit Court, Judges concerned building upon our to supporting the participation trial and the risk of loss of liberty Ian Gray, John Jordan, Chris Ryan, Paul Cosgrave and reputation for strong adherence of Aboriginal and Torres Strait or family disintegration, on top of Peter Couzens to the County Court (and President of to the rule of law and a high Islander lawyers at our Bar and

all of the other challenges faced by photos courtesy of paul west the Children’s Court) and Peter Lauritsen as the new quality profession to expand our welcome the bipartisan move to give clients before the courts. Chief Magistrate. contribution to international effect to Indigenous constitutional The challenges faced by those As the new-year began it was very quickly arbitration work. I am pleased to say recognition. working in these practice areas are apparent that changes to Victoria Legal Aid that we are in the advanced stages unlikely to improve in the current 1 R v Chaouk [2013] VSC 48 (15 February funding guidelines, introduced in January, were of planning for the establishment 2013) Lasry J.; M K v Victoria Legal climate and this poses both a seriously impacting upon our members and of an Arbitration and Mediation Aid [2013] VSC 49 (18 February 2013) challenge and an opportunity for T Forrest J. criminal trials in this State1 creating pressures Centre in Melbourne, a centre that the Bar as an institution. If we are for those practising in the criminal, family and will provide opportunities to attract 2 TLC Air Conditioner (Zhongshan) expected to routinely appear without Co Ltd v The Judges of the Federal children’s courts particularly. Victoria Legal Aid lucrative international arbitration Court of Australia [2013] HCA 5

20 VBN VBN 21 news and views

news and views news The Challenge of Improving Access to Justice

The Hon Mark Dreyfus QC MP, Attorney-General

n February this year I had the honour of and constructive manner, and where possible, without becoming Attorney-General of Australia. recourse to litigation. In the months since taking on that role I strongly believe that providing access to justice in this I have greatly enjoyed re-engaging with the broadest sense, to all members of our society, is essential challenges and opportunities of law reform to strengthening Australia as an egalitarian, participatory and legal policy development, a number of democracy under the rule of law. To some extent this which I had first-hand experience of as a solicitor and premise is captured in the deceptively simple vernacular, thenI as a member of the Victorian Bar. so often paid lip service in this country, that ‘everyone The Attorney-General’s portfolio is very broad, but one deserves a fair go’. of the key policy challenges that I have been engaging Of course, this is an ideal. But ideals are important in with, and that I recently discussed at a conference in setting policy objectives, and over the last five years the Melbourne, is the challenge of improving access to justice. Australian Government has been working to strengthen ‘Access to justice’ is a concept that is broader than access to justice through a range of important actions simply the ability of individuals to enforce their legal and initiatives. rights in our courts. Access to justice is a concept that For example, while the separation of powers also relates to how the institutions of State, of which established in the Australian Constitution clearly the formal justice system is only one part, operate to separates the executive, administrative and judicial arms ensure that all Australians live under the protection that of government, there can be no doubt that the executive our laws are meant to provide. It is my view that while of the Australian Government has a critical role to play people must always have the opportunity to fight for in setting standards of justice within our community. their rights in court, justice in a society under the rule of The governmental policies that shattered a generation law should not be something individuals must constantly of Aboriginal families, whatever the intentions of those be fighting for. Rather, justice should be the norm, who implemented them, inflicted a tragic and lasting integral to our way of life. injustice on thousands of Australians. The apology to the Under this expansive definition, ‘access to justice’ is Stolen Generation, delivered by Prime Minister Kevin also about ensuring that all Australians – and in some Rudd in February 2008, shortly after Labor came to cases the institutions that constitute our civil society, such office, was a profoundly healing act of justice that was as non-government organisations engaged in public life far too long in coming. The delivery of the apology was a – have the opportunity to participate in society with a poignant event for me too, not just because of its historic high quality of social, civic and economic engagement. significance, but because one of the members of the This means that while the Government has been stolen generation, Lorna Cubillo (who I, together with and to the children themselves. of the Royal Commission into laws, policies and practices to prevent improving access to justice by increasing funding to the Jack Rush QC and Melinda Richards, had represented in While we cannot change what has Institutional Responses to Child and better respond to child sexual courts and to providers of legal services such as legal a case bearing her name), was present on the floor of the happened in the past, or take Sexual Abuse. This Royal Commission abuse in institutions in the future. aid, community legal centres and Aboriginal and Torres House of Representatives to hear the apology offered by away the pain of years, decades will hear from hundreds of witnesses In this way, the Royal Commission Strait Islander Legal Services, more than just funding the Prime Minister. and in some tragic cases, lifetimes who have suffered terrible injustices will help to build a more just society. increases are required. In particular, improving access And on 21 March of this year, Prime Minister Julia of parents and children forcibly as victims of child sexual abuse. A society in which our children, the to justice requires an innovative, systemic approach Gillard delivered another powerful act of justice for those separated from each other, in There is justice for the victims of most vulnerable members of our that emphasises fairness and equity, and that facilitates affected by forced adoption, apologising on behalf of our making this apology we have taken these shocking crimes in at last being society, are far less vulnerable to the resolution of disputes that do arise in a practical nation to those who were forced to give up their children, a significant step toward justice for given the opportunity to be heard, the appalling injustice of abuse. those who have been wronged. to be believed, to be acknowledged. As Attorney-General I will ... improving access to justice requires an innovative, systemic approach Another vitally important action But the Royal Commission will go continue to work to improve access that emphasises fairness and equity, and that facilitates the resolution of that the Government has initiated far beyond just listening: It will to justice in Australia through a disputes that do arise in a practical and constructive manner, and where to bring justice to so many in our investigate where systems have range of measures that aim to make community who have been denied failed to protect children, and make justice an integral part of our society possible, without recourse to litigation. justice until now is the establishment recommendations on how to improve and culture.

22 VBN VBN 23 news and views New Jury Directions news and views news Chief Judge Rozenes, County Court of Victoria

he Jury Directions Act 2013 (Vic) commences on should therefore come prepared to answer questions 1 July 2013. This Act will fundamentally change from the trial judge about why they want, or do not want, T the way that counsel and trial judges approach particular directions. jury directions in criminal trials. The trial judge must give directions on requested In particular, Part 3 of the Act creates a new process for matters unless there are ‘good reasons’ not to do so. ‘Good determining what directions should be given in a trial, reasons’ include where the direction would concern based on the request of counsel. a matter that has not been raised or relied on by the Legal Part 3 will require significant cultural change from accused, or where the direction would involve the jury both trial judges and counsel. Part 3 requires counsel and considering the matter in a way that is different from the the trial judge to discuss certain issues after the close of way the accused presented his or her case. Counsel will evidence, and before closing addresses. Such discussions need to bear this in mind when preparing and conducting are already occurring in some cases, however, the Act the defence case. Aid will formalise this process and require these discussions Trial judges will not be required to give a direction in each jury trial. that counsel has not requested, or has requested not Instead of waiting for the trial judge to give directions be given, unless a direction is necessary to avoid to the jury and then advising the judge of any exceptions, a substantial miscarriage of justice. This residual counsel will need to think about what directions should obligation will only be exercised in exceptional or should not be given much earlier. cases. Counsel should not rely on trial judges giving Defence counsel will need to inform the trial judge directions that counsel have not requested. If the trial whether elements of the offence charged and any judge is considering giving such a direction, the trial defences that are open on the facts, are, or are not, in judge must first raise this with counsel. Counsel should issue. Once the issues have been defined, both defence be ready to answer questions about these issues. counsel and the prosecution must request any directions These provisions are designed to ensure that juries in Chronic they want the trial judge to give on those matters in issue, are only given directions that are relevant to the issues or evidence that relates to those matters. In reality, this in dispute. This will help jurors by minimising process is likely to take the form of a discussion with unnecessary or confusing directions, and should assist the trial judge. to streamline directions. If a matter is appealed, Decline The Act recognises that counsel are well this process will also assist the appeal court to placed to determine what directions are in determine whether directions were required in the interests of their client, and that it is one a case, and their adequacy. Simon Moglia of the duties of counsel to assist the trial It also provides counsel with the opportunity judge in determining what matters are in to shape each case and to highlight its strengths. issue in the trial. But most of all – be prepared. unding for legal aid has never Just because a direction is available, The Act was developed in consultation been generous. Most, if not all, does not mean that it should be given. with the courts and the legal profession. say it is chronically underfunded. Some directions may in fact backfire, These are important reforms which F So, in 1996, many were appalled by and draw attention to evidence that have the full support of the courts. an actual cut to funding for legal aid. In 1997, may not be advantageous to the I look forward to the successful the Commonwealth walked away from their client. Other directions may implementation of this Act to achieve longstanding commitment to fund legal aid not materially assist the simpler, clearer and more effective equally with the States. Over years since, by jury, for example, if they directions. falling behind CPI, we have seen even further

concern evidence that is reductions, in real terms, for funding access to illustration by guy shield insignificant. For further information see justice for the poorest Victorians. Most recently, The Act also recognises www.legislation.vic.gov.au under Victoria in December 2012, Victoria Legal Aid reduced that it is, ultimately, the Law Today (after 1 July 2013) and Jury assistance levels across a range of jurisdictions, role of the trial judge to determine Directions: A New Approach, which is leaving some people without any prospect of what matters are in issue and what available at www.justice.vic.gov.au legal assistance even though it is certain they directions are required. Counsel under ‘Publications’. will go to jail. To say times are tough is a vast understatement.

24 VBN VBN 25 news and views

health service. The unprecedentedly The Court of Appeal has considered the Chaouk Most legal problems were experienced by the most vulnerable and disadvantaged high threshold in the new guidelines stay and refused to intervene, commenting that in sets a new low in access to justice news and views news light of the critical importance of an instructing people in the community, including the disabled, unemployed, single parents, terms. In cases other than driving indigenous Australians and those on welfare. matters, a term of imprisonment solicitor in the trial of a serious indictable offence must be “likely” before assistance will it was hard to see how the trial judge could have be provided for counsel to appear. Notwithstanding recent reforms come to any other conclusion. Why does it matter? Of those, 31% of problems were after housing services. 73% of legal to community corrections and the VLA [2013] VSC 49). The Court of The agreement provides In accordance with joint commitments handled without legal advice and service providers could not meet renewed emphasis on using this sort of Appeal has considered the Chaouk Commonwealth funding to legal aid to social inclusion, the Commonwealth 18% of those who are faced with legal demand for services. Most reported order to meet the goals of sentencing, stay and refused to intervene, and drives national reform across and States traditionally shared the problems did nothing. 55% of the underfunding, restricted services the legal assistance necessary to obtain commenting that in light of the the sector. Through the LCA, the burden of legal aid funding equally. problems had a substantial impact on to clients, and increasing waiting such an outcome is being undermined. critical importance of an instructing Victorian Bar raised issues about the It was seen as a fundamentally everyday life, leading to income loss or lists. 82% of respondents reported In a 2008 PricewaterhouseCoopers solicitor in the trial of a serious chronic underfunding of the sector, the federal responsibility to ensure a free, financial strain, stress-related illness, rationing of services. In 11,693 of report for the Victorian Bar, indictable offence it was hard to see demands on legal assistance providers, democratic and just society. physical ill health and relationship instances (or 14%), people were criminal barristers were shown to how the trial judge could have come issues with data collection and the Economically, it is not hard to see breakdowns. This has flow-on effects turned away from the service. be working for fees considerably to any other conclusion (R v Chaouk complexities faced by providers. At the the preventative benefits of providing for families, support services and Further, it must be remembered lower than other similarly qualified [2013] VSCA 99 at [31]). time of writing, the outcomes of the people access to justice through workplace productivity. Most legal that many claims by government of professionals. Over 3 years, the These cases by no means account review were yet to be announced. But advice and representation. It saves problems were experienced by the increases to legal aid, refer in large number of junior barristers for for all attempts being made by our there was significant skepticism about people from the rigors (if not trauma) most vulnerable and disadvantaged part to funding of non-litigation whom criminal work accounted for members to bring to light injustices the political will required to implement of litigation or at least minimises the people in the community, including the services – community education, 90% of their practice had declined produced by inadequate legal aid real change. various costs of lengthy proceedings disabled, unemployed, single parents, publications and the like. The support by 59%. Whilst statistics since then resources. A number of trials in Members do not need to be between unrepresented litigants – indigenous Australians and those for ‘front-line’ client services for show an increase in numbers in the the County Court have also been reminded that results in litigation particularly by having competent on welfare. people in real disputes has quietly lowest income brackets, there is a stayed temporarily or adjourned. The have a much wider effect than those practitioners conducting the case. The problems often occurred in fallen further behind the levels corresponding decrease in higher courts are also counting the cost of for the immediate parties. Rulings In a 2012 report by Judith Stubbs clusters, usually in three different of support suggested by public brackets – suggesting ‘juniorisation’ considering these applications – on and judgments guide the advice and Associates, it was shown that combinations: (1) Consumer, crime, announcements. of the criminal bar. average taking two days of valuable given in other cases and indeed for every dollar spent on community government and housing; (2) Credit/ These surveys and the experience Such trends reveal that troubling trial court time the behavior of parties before any legal centres, around $18 worth debt, family and money; and (3) of all who work in the sector provide structural changes are afoot. The loss In 2012, the Commonwealth disputes might otherwise arise. So, of benefit was returned to the Employment, health, personal injury a stark contrast between the current of work at the junior criminal Bar Attorney-General announced a providing proper resources for legal community. and human rights. Regardless of reality and the fair and just society directly affects the capacity of the Bar review of the National Partnership aid funding in litigation is a major In terms of doing justice how problems arise, the findings to which we undoubtedly aspire. to provide sufficiently experienced Agreement on Legal Assistance contributor to the management and individually indigenous people, demonstrate that people are For many, they are farther from it and skilled advocates, and later, Services – the five-yearly agreement avoidance of disputes in the long for example, are over 14 times often confronted with multiple than we might have imagined. quality judicial officers, in higher between the Commonwealth and the run. The chronic refusal to fund the more likely to be incarcerated than legal problems at the same time. courts, particularly in trials. Any States and Territories, outlining the work of the Bar and other lawyers in other members of the community. Significantly, the majority of legal What does it mean for the short-term savings are likely to have roles and responsibilities of respective this respect undermines the fairness This alone justifies considerable problems were concentrated among severely deleterious effects on access Victorian Bar? governments and their agencies in and manageability of community support for Aboriginal and Torres a small minority – 9% of respondents to justice in the medium to long term. In late 2012, Victoria Legal Aid, who delivering these services. relations generally. Strait Islander Legal Services – a accounted for 65% of the problems. A If in fact, the junior bar is not being administers the bulk of funding in key member of the ‘legal assistance large number of people simply ignore depleted, but those in higher brackets the sector for Victorians, announced sector.’ ATSILS have calculated their legal problems due to factors such as are not being retained, the same significant changes to its grants real term funding loss since 1996 at poor legal knowledge, other personal troubling result occurs. POSTSCRIPT guidelines. Notably, they produced around 40%. This does not take into constraints or possible systemic In response to cuts to instructors cuts to assistance in driving matters, account unmet and increased need constraints. In some jurisdictions in criminal trials, the early n the eve of the May state budget, VLA partially relaxed its criminal trial summary crime, instructing in due to population increases and people can sit below the Henderson months of 2013 saw widespread instructor guidelines in response to the Court of Appeal’s decision in Chaouk. criminal trials, representation O demographic changes, or changes to Poverty Line (named after the 1973 applications for the stay of trials The change only applies to those cases where the presence of an instructor is for parents in child protections criminal law that particularly affects inquiry into poverty in Australia and until appropriate resources were necessary. It is temporary – to be reviewed subject to consultation by September. applications, among others. Many of indigenous people. indexed quarterly since), but still not made available to the accused. Two It also comes at a cost – the money will come from other areas of current legal these cuts directly affect the number In 2012, the Law and Justice qualify for legal aid. rulings in particular, by Justices assistance. No other guidelines – summary crime, driving offences, Children’s Court of briefed matters coming to the Bar. Foundation of NSW reported on The 2012 Australian Council Lasry and T Forrest made the links criminal and family division – have been relaxed. The increase of $3.4m in VLA In summary crime, no fees will be the Legal Australia-Wide Survey on Social Services Australian clear between adequate funding funding, announced in the state budget, will barely cover the projected $3.1m debt paid for counsel in a driving matter – into unmet legal need. It found that Community Sector Survey found for trials and the ability of the for this financial year. Rather, the budget papers confirm that compared to 2012, there even if the likely result is jail – unless each year an estimated 8.5 million that legal service providers were court to deliver justice (see R v will be a reduction of 4000 grants of aid (about 10%) and 1000 duty lawyer services. the accused is already registered with people nationally (aged over 15 the second highest service type to Chaouk [2013] VSC 48 and MK v The continues.—SM disability services or an area mental years) experience a legal problem. report difficulties in meeting demand,

26 VBN VBN 27 news and views

But governments introducing anti-corruption commissions no doubt also remember that when the ICAC was introduced in 1988, its first investigation was into the activities of the Premier himself, who was found by ICAC to have been guilty of corruption.

A Sheep in Wolf’s Clothing?

A look at the Independent Broad-based Anti-corruption Commission (and other commissions of inquiry) THE HON STEPHEN CHARLES QC

came to the Bar in October 1961. will as a matter of practice grant such a right It was my very good fortune in upon request. The extent of that right and the September 1962 to be briefed manner of its exercise may vary dramatically as second junior to John Starke from case to case. QC in the King’s Bridge Royal The Bar therefore has every reason to Commission, which lasted over welcome the establishment in Victoria of the 10 months. There were 20 or so barristers at Independent Broad-based Anti-corruption theI Bar table, including the cream of the Inner Commission (IBAC) (with two of our leading Bar, silks such as Oliver Gillard, Noel Burbank, silks as Commissioner and Inspector); and any John Young, Tony Murray, Xavier Connor and barrister, no matter what area of practice the Peter Murphy, as well as Starke. I was there person intends to pursue, would be well advised only to index the transcript. The Commission to become fully familiar with the myriad rules was an extraordinary learning experience for and practices that operate in hearings before an embryo barrister, and one for which I have such bodies. There are two books by Victorians always been very grateful. on the subject; L.A. Hallett, Royal Commissions Nearly every Royal Commission I have and Boards of Inquiry, now a little dated, was heard of since has been similarly flooded with published in 1982; and Dr Stephen Donaghue lawyers, briefed for long periods, for example SC has written his excellent Royal Commissions the regular inquiries into bushfires and the and Permanent Commissions of Inquiry (2001), building industry, the West Gate Bridge Inquiry which is required reading for the many difficult and the Wheat Board Inquiry, and nowadays areas to be found in practice before such inquiries (parliamentary or otherwise) into bodies. Melbourne University Law School’s various forms of sexual abuse. All those graduate course also includes a subject, potentially affected by such inquiries will The Law of Royal Commissions and Other want legal assistance and will usually be Public Inquiries. granted the right to be represented. The inquiry which has been principally in the To this list one must now add the host of public view recently has been that of the NSW corruption commissions and other permanent Independent Commission Against Corruption commissions of inquiry which have been set up (ICAC), known as Operation Jasper. The ICAC illustration by guy shield by both Federal and State governments in large was introduced in 1988 by the Greiner Liberal numbers. Most states and the Commonwealth Government. It is a body with great powers now have standing crime commissions and a and it has been very successful in lifting variety of other forms of inquiry which have ethical standards in NSW. In its inquiries ICAC powers similar to those exercised by Royal is careful to accord natural justice to those Commissions and which when summoning a investigated, and inquiries made recently person to give evidence are either required both to the Law Society and the Bar in NSW to allow that person legal representation or produced no complaint of ICAC having acted

28 VBN VBN 29 news and views

that has been called. The inquiry was influenced by Minister Macdonald Ombudsman for Victoria and described in opening as the most may have enabled Mr Obeid and will significantly undermine the complex and important investigation his family to acquire profits in the effectiveness of the integrity scheme news and views news undertaken by ICAC, inquiring order of $100 million. which your government intends to into various activities of the NSW It must be stressed that these implement. Indeed, I consider that Minister for Primary Industries and matters stand simply as allegations enacting the bills will be a significant Minister for Mineral Resources, the until findings are made by the ICAC backward step for public sector Hon Ian Macdonald MLC, which had Commissioner, the Hon David Ipp accountability. the effect of opening a mining area in AO QC. But the suspicions which first In this article I have space to deal the Bylong valley for coal exploration, caused ICAC to investigate surely only with the circumstances in including whether his decision to do provide the paradigm example of a which the IBAC can commence so was influenced by the Hon Edward situation calling for investigation by an investigation. At first glance Obeid MLC or members of his family. an anti-corruption commission. the IBAC might indeed be thought Counsel’s opening makes it Before the 2010 Victorian election, modelled on the ICAC – it contains perfectly clear that at the outset the then Opposition promised that powers in the investigation of of the investigation the ICAC if elected it would establish a broad- corruption which have a number merely had suspicions that some based anti-corruption commission of similarities to those of ICAC. unidentified corruption may have modelled closely on the NSW ICAC,

Misconduct in public office is an indictable offence at common law, and is therefore plainly not covered by the definition of “relevant offence.” This is a surprising omission; misconduct in public office, one would have thought, is at the heart of conduct of a Minister or public official which would be likely to attract the attention of an anti-corruption body.

unfairly or having overstepped This section, together with the that when the ICAC was introduced acceptable limits in its investigations definition of corrupt conduct, plainly in 1988, its first investigation was occurred. It was alleged that the which was intended to be a ‘one-stop But closer examination shows the or public hearings. entitles the ICAC to investigate an into the activities of the Premier Obeid family had deliberately shop’, “fighting corruption across the differences and the problems faced ICAC’s powers of investigation allegation amounting to misconduct himself, who was found by ICAC to organised their business affairs so entire public sector” and working by the IBAC Commissioner when are almost unlimited. The definition in public office by a public official, have been guilty of corruption. Mr as to disguise their involvement, “cooperatively with the Auditor- deciding whether or not to embark on of “corrupt conduct” in the ICAC which would include a Minister. Greiner immediately resigned. The including through multiple layers General and the Ombudsman to a particular investigation. Act 1988 (NSW) (ss 7-9) includes Section 12A also provides that: verdict was later overturned by the of discretionary trusts and $2 shelf provide a seamless coverage of In the IBAC Act2011 (Vic), “corrupt (inter alia) any activity that could NSW Court of Appeal in Greiner v In exercising its functions, the companies, the names of which the range of integrity issues”. In conduct” is stated by s 4(1) to mean adversely affect directly or indirectly ICAC (1992) 28 NSWLR 125 where Commission is, as far as practicable, to were repeatedly changed. ICAC had implementing that electoral promise conduct: the exercise of official functions by the facts are set out in detail, but direct its attention to serious corrupt investigated these matters for many the Victorian government has now a public official and also includes a by then Mr Greiner had departed (a) of any person that adversely affects conduct and systematic corrupt months, during which more than enacted six Acts of Parliament wide variety of particular offences, from the political scene. The Court of the honest performance by a public conduct and is to take into account 100 witnesses had been interviewed, to introduce the IBAC. The IBAC subject only to certain limitations Appeal’s majority decision has itself officer or public body of his or her or its the responsibility and role other public search warrants had been executed, legislation has already been vigorously in s 9. The ICAC’s jurisdiction and been criticised by administrative functions as a public officer or public authorities and public officials have in computer hard drives seized and criticised by persons such as the Hon principal functions are set out in s 13. lawyers (see for example the articles body; or the prevention of corrupt conduct. downloaded, and tens of thousands Tim Smith QC as a ‘toothless tiger’, The ICAC is entitled to investigate by Professor Margaret Allars cited in of documents seized and assessed in his Working Paper No. 1 (August (b) of a public officer or public body Since the definition of corruption 24 Federal Law Review 235, at 249). any allegation or complaint that, for relevance. Counsel conceded 2012) of Democratic Audit of Australia. that constitutes or involves the is all-embracing and the ICAC’s Details of the Operation Jasper or any circumstances which in the that on one view the Minister’s Similarly, the Victorian Ombudsman, dishonest performance of his or her entitlement to investigate upon investigation are readily obtainable Commission’s opinion imply that: decisions might be explained solely George Brouwer, both in his letter to or its functions as a public officer or suspicion of corruption is for from the ICAC website. The scope of by bad governing but continued that the Premier dated 16 November 2012 public body… (i) corrupt conduct, or practical purposes unlimited, it the public inquiry, which commenced the public inquiry would investigate and in his fuller Report to Parliament follows that it is very difficult for on 12 November 2012, is set out Sub-sections (c), (d) and (e) (ii) conduct liable to allow, encourage whether the decisions might also of December 2012, Mr Brouwer an investigated party to obstruct or in a document, in effect the terms contain like provisions dealing with or cause the occurrence of corrupt be explained by corruption. He complained that the scheme is “very delay an investigation by launching of reference of the inquiry, last breaching public trust, the misuse conduct, or continued that “If it is corruption poorly designed”, and: court proceedings for an injunction amended on that date. The opening of information or material, and then it is corruption on a scale (iii) conduct connected with corrupt on the ground that ICAC is exceeding address of counsel assisting the The bills contain a number of conspiracy. Section 4(1) concludes probably unexceeded since the days conduct, may have occurred, may be its jurisdiction. But governments ICAC (Geoffrey Watson SC) on 12 concerning elements which, if enacted, with the following words which apply of the rum corps.” The allegation occurring or may be about to occur. introducing anti-corruption November is available in full on the will constrain and compromise to each of the preceding sub-clauses was that the decisions taken or

illustration by guy shield by illustration commissions no doubt also remember website, as is much of the evidence the functions of an independent (a) to (e):

30 VBN VBN 31 news and views

being conduct that would, if the facts corrupt conduct, one might have example in the multiple challenges to were found beyond reasonable doubt at expected an attempt at a definition of the investigations of Frank Costigan a trial, constitute a relevant offence.” the word “serious”. Although it might QC in the Painters and Dockers news and views news well be thought that any conduct Commission in the 1980s) that In the definition section (s 3), “relevant that could be described as corrupt is well-funded suspects will seize any offence” is said to mean – serious, the problem remains and it opportunity to challenge and delay (a) “an indictable offence against an will no doubt have to be dealt with by an inquiry of this kind. The resulting Act; or a court. delay permits vital evidence to be (b) any of the following common law hidden or destroyed. At the outset offences committed in Victoria – of an investigation, the IBAC (like (i) attempt to pervert the course the ICAC in Operation Jasper) will of justice; In addition to the very often have no more than a suspicion (ii) bribery of a public official; constrained definition of of unidentifiable corruption, the (iii) perverting the course of proper statement of which will not justice. corrupt conduct, these be available until its investigators have uncovered it. The IBAC Acts The carrying out of investigations is sections give those QC show that the Victorian government then dealt with in s 60 in Division 4 of investigated the ability, as was not willing to trust the IBAC the IBAC Act 2011 (Vic) and provides: soon as it becomes known Commissioner to exercise the or not (1) Subject to sub-section (2), the that an investigation discretion to commence investigations IBAC may conduct an investigation in in a realistic and responsible manner, accordance with its corrupt conduct is taking place, to seek unlike the NSW ICAC Commissioner’s investigative functions – an injunction from the broad discretion under s 12A of the ICAC Act. QC? (a) on a complaint made to it Supreme Court to halt Unless the courts are able to under s.51; or the investigation. construe the IBAC Act in a manner (b) on a notification ot it under different from the one suggested s.57(1); or above, the really galling consequence (c) on its own motion. is that, if circumstances such as (2) The IBAC must not conduct an those investigated by the NSW ICAC These sections are curiously investigation under sub-section 1 in Operation Jasper occurred in worded and their full purport will not unless it is reasonably satisfied that Victoria, the IBAC would probably be known until they are construed the conduct is serious corrupt conduct. not be able to embark on an by a court. In addition to the very (emphasis added.) investigation of them, and could be constrained definition of corrupt halted by injunction if it attempted to The definition of “corrupt conduct”, conduct, these sections give those commence preliminary inquiries. in marked contradistinction with investigated the ability, as soon as it If the IBAC is indeed, as the the wording used in the ICAC Act, becomes known that an investigation government promised, to be modelled is a very narrow one. Misconduct in is taking place, to seek an injunction on the NSW ICAC, then the IBAC public office is an indictable offence from the Supreme Court to halt the legislation requires dramatic re- at common law, and is therefore investigation. The definitions in ss 3 working and amendment, first by a The Argument in Favour of Retaining “SC” plainly not covered by the definition and 4 may well require the IBAC, if new definition of corrupt conduct, of “relevant offence.” This is a challenged, to articulate those facts secondly by giving the IBAC Her Honour Judge Hampel surprising omission; misconduct which if proved beyond reasonable Commissioner far greater power to in public office, one would have doubt would constitute a relevant commence investigation, and thirdly thought, is at the heart of conduct offence, one of the limited number of n 2000, senior counsel were appointed in Bar Association established the rank of senior counsel in by placing appropriate trust in the of a Minister or public official offences as defined in s 3. Unless the Victoria for the first time, replacing Queens 1993, which it bestows upon its members after exhaustive IBAC Commissioner this government which would be likely to attract the IBAC can articulate facts it wishes to Counsel. Queens Counsel had been appointed consultation with the profession and judiciary. In NSW, has appointed not to investigate attention of an anti-corruption body. investigate which would constitute by the Governor. By convention, Cabinet the office of senior counsel replaced the office of Queens

trivial or frivolous complaints, illustration by guy shield The limit of the ability of IBAC such an offence, how can it be said to acted on the recommendation of the Chief Counsel, which had been made by the Governor on the but to direct attention, as far as to conduct an investigation in be investigating corrupt conduct, still Justice of the Supreme Court. Senior counsel recommendation of the Attorney-General and usually the practicable, to serious or systemic accordance with its corrupt conduct less serious corrupt conduct? are appointed by the Chief Justice, following consultation President of the NSW Bar Association. The change of title corruption. And this is but one of investigative functions is then found These barriers to investigation will withI the judiciary and the legal profession. The NSW and method of appointment has not diminished the high the areas of the IBAC legislation in s 60. Since IBAC must not conduct seriously reduce the ability of IBAC requiring amendment for an effective an investigation unless reasonably to inquire into suspected corruption. integrity system for public sector The change of title and method of appointment has not diminished the high satisfied that the conduct is serious Long experience has shown (for accountability. status or desirability of the role of silk in either State.

32 VBN VBN 33 news and views

suburban shopping centre, football match or golf club: “What do you do mate?” “I’m an SC.” “What’s that?” As news and views news opposed to: “What do you do mate?” “Oh, I’m a QC.” “Really? You must be pretty smart!” status or desirability of the role of Court from the Bar have all been The origins of the office of Queen’s Counsel and more silk in either State. senior counsel. latterly senior counsel reveal its essential role in the Senior counsel appointed in NSW The office of silk is relevant development of the common law of Australia, and the and Victoria have maintained the to those who hold it and also to pursuit of the rule of law as the foundation-stone of our rich tradition of silk. Anecdotally, advocates who aspire to be appointed Australian democracy. Within the profession we fully it appears that the number of silk in future. A new barrister signing appreciate that those whom the Chief Justice appoints applications for the office of senior the roll this year may hope to be senior counsel in and for the State of Victoria2 possess the counsel have not diminished appointed senior counsel in 15 or advocacy skills, legal experience, learning and personal because the title has changed from 20 years from now. What identity and qualities worthy of the mark of professional distinction. Queens Counsel; nor has the high symbolism do we want this ultimate Indeed the recognition within the profession of the calibre of applicants declined. To be accolade to have? possession of these qualities is confirmed by the fact that senior counsel is to be recognised Senior counsel is current, the Chief Justice makes the appointment. This is essential in a way that provides considerable progressive and Australian. A modern to the efficacy of the appointment. professional advancement due to the restatement of the role of Queens But the rank of ‘senior counsel’ is not an internationally status it gives; silks are recognised Counsel. That title is a thing of the recognised quality mark. It is only necessary to turn to as leaders of the profession, whether past in both NSW and Victoria. The the letterheads of the majority of middle to upper tier they are called Queens Counsel Queensland Attorney-General has said law firms in Australia to see that proposition made good. or Senior Counsel. reintroduction of Queens Counsel will There you will find a multitude of solicitors, possessing Some 13 years since senior counsel give Queensland silks a competitive few if any advocacy skills, described as SC, or ‘Special were first appointed in Victoria and 20 advantage in Asia. It is sad to think that Counsel’. Indeed the title ‘senior counsel’ fails almost stultifying, short-sighted and years since they were first appointed in 21st Century Australia people are On with Her Head: wholly to convey to the public that those so appointed culturally cringing? in NSW, there has been a generational worried that unless we use the same possess the experience, learning and personal qualities There are no longer appeals to the shift. Now, many senior counsel are titles as the British, we will not have worthy of the mark “QC”. Privy Council from Australian courts “Queen’s Counsel” seen as the leaders of choice and competitive equality or advantage. In stark contrast: and we do not regard UK Supreme as the best and brightest lawyers in Not being Queens Counsel (or even Court decisions as superior to those Must Be Reinstated … the rank of Q.C. is a good indication, even if not a guarantee, Australia. Former Commonwealth barristers) does not seem to have of the Australian High Court, simply to a client with an important and difficult case that an advocate Solicitor-General SC disadvantaged attorneys in the United because of their origin. If the legal Michael D Wyles SC … can be trusted to handle such a case…The rank of Q.C. is an was appointed as a Justice of the High States of America or the People’s profession chooses to freeze in a internationally recognised quality mark which plays an important Court, as was the Hon Justice Bell Republic of China in Asia. moment in time, it will fall behind role in ensuring the competitiveness of English advocates in AC, who had been appointed senior Even the most sacred traditions he decision of the Queensland Attorney- the times. If we had clung slavishly litigation outside the UK and in international arbitrations. counsel in 1997. In 2010, Pamela Tate sometimes need to be revisited. The General Jarrod Bleijie to reinstate the title to all traditions, women would not be SC was appointed Solicitor-General Succession to the Crown Bill is under Queen’s Counsel in that State is far sighted So wrote a committee of the English Bar chaired by admitted to Universities, people would of Victoria and Stephen McLeish SC consideration in the United Kingdom. and a boon for the Queensland Bar. Mr Sir Sidney Kentridge. not ride bicycles and operations would replaced her in 2003 when she was It aims to remove the gender bias in TBleijie displays a keen understanding of the utility of the Reinstatement of the title is a matter of serving the occur without anaesthesia. The office appointed to the Court of Appeal. the laws of succession to the British Queen’s Counsel title, and the overwhelming value which community, which is entitled to feel secure in the stability of Senior Counsel pays tribute to the The current chair of our bar is Fiona throne. In 2009, the United Kingdom that title carries in the market for legal services, both here which the institutions delivering and reinforcing the rule tradition of Her Majesty’s Counsel McLeod SC and past chairmen replaced the House of Lords with the and overseas: of law bring. This is particularly so in times where too whilst being an Australian mark include Peter Riordan SC, the Hon Supreme Court. Imagine if we had many politicians have come to eschew statesmanship in of distinction. QC is also more widely known and understood by the public as Justice McMillan SC, Melanie Sloss SC changed the Australian High Court favour of the immediate gratification of popularity. The I chose to change from Queens a mark of professional distinction at the Bar… it is important and Mark Moshinsky SC. The more to the Australian House of Lords office of QC (and from time to time KC) was an institution Counsel to senior counsel when the that Queensland silks are competitive internationally… Asian recent appointments to the Supreme in a bid for competitive prestige? integral to the system of adversarial justice which, has modern rank was introduced. I am countries employ QCs from as far as the United Kingdom …1 Court, Federal Court and Family Would not such a move have been served our Australian community well. The emasculation honoured to have this rank. I believe Reinstatement of the title has little to do with ideology of the title Queen’s Counsel to the form ‘senior counsel’ that ignorance or confusion about

and everything to do with facilitating the Queensland Bar has never been explained and is not understood by illustration by guy shield the meaning of senior counsel can be obtaining a greater share of the ever tightening market for the Australian community. The community knows the dealt with by explanation rather than To be senior counsel is to be recognised in a way legal services, particularly litigation services. The Australian title Queen’s Counsel and is comfortable with it. The reversion to old titles. Let us continue that provides considerable professional advancement Bar should have been first to Asia. We were not. We now community is entitled to have the title restored as part to build the global reputation of have to follow the English Bar into Asia where we will be of the fabric of a society in which the rule of law prevails. due to the status it gives; silks are recognised as Australian senior counsel rather than competing with the title “QC” which has a 400-year pedigree. Whilst the English Bar continues to enjoy international aim for them to blend in better with leaders of the profession, whether they are called Even within Australia, ‘senior counsel’ are at a recognition of that professional distinction which British silk. Queens Counsel or Senior Counsel. disadvantage. The proposition can be tested at any appointment as Queen’s Counsel brings with it, members

34 VBN VBN 35 news and views

of the Victorian Bar were denied the issue of letters patent by the then Victorian Attorney-General in A message from the Chair 2000. Acting against the wishes of the profession the news and views news Attorney-General unilaterally chose to replace the he issue of QC/SC has generated some interest title ‘Queen’s Counsel’ with ‘senior counsel’ because Tin recent times with strong views being expressed he thought it was appropriate to do so. That action was publicly concerning change to the system in Victoria. not desired by the public, and was neither logical nor The articles in these pages reflect some of those views. rational. As a reflection of the then Attorney’s personal It is timely to remember that the designation of senior views, it can be respected but not concurred in. counsel, either QC or SC, is intended to serve the public t its best the shorthand explanation of the title interest, providing public identification of barristers A senior counsel is that it “used to be QC, now it whose standing and excellence in advocacy justify an is SC”. This invites the immediate response – “why, are expectation of the highest level of service by those they not as good?” The mark ‘SC’, in the mind of the engaging them, the judiciary and the public. public we serve, does not bring with it the association Until 2003, the appointment of ‘silk’ was made by the of excellence in advocacy, or expectation of erudition Victorian Governor on advice from the Chief Justice to in law which the mark ‘QC’ immediately stimulates. the Attorney-General, requiring the issuing of letters This is not to say that individual performances patent for the designation. Until 2000, the appointees cannot overcome the immediate and understandable were referred to as Queens Counsel (QC) until a change perception that the SC is in every sense, not a QC. by the then Attorney General to replace QC with Senior But even if this perception is overcome, it will only Counsel (SC). In 2004, a new process was implemented be in individual cases. At best, imbuing the mark with the Chief Justice as appointor. ‘SC’with the immediate associations of excellence In April 2011, the Chief Justice signalled that the and professional distinction which the rank ‘QC’ significant workload associated with the appointment carries in the community, is many generations process was unsustainable. The Victorian Bar away. The wheel is having to be recreated, and canvassed models for appointment nationally and for no logical or rational reason. In the interim internationally and a discussion paper outlining a the services provided by ‘senior counsel’ have proposed model was released in December 2011, become commoditised and we have been denied the followed by a significant and extensive consultation opportunity to compete to bring work to the Victorian process which involved members individually and Courts, together with the associated benefits which through Bar committee structures, the broader flow to the wider community of Victoria. profession, the courts and other significant As the ranks of Queen’s Counsel swell in Queensland, stakeholders. the disadvantage suffered by ‘senior counsel’ in and The model outlined in the December 2011 Discussion for the State of Victoria will be further compounded. Paper was supported by the Chief Justice and the a study in That disadvantage, having no foundation in law, nor in Council of Judges of the Supreme Court of Victoria, ideology, should be removed. and was piloted in 2012. If it is the case that senior counsel are not presently A clear majority of members and successive permitted by O 14.083 to use the form ‘QC’, the Bar Councils have strongly favoured retaining an Contradictions Attorney-General could put in place a procedure appointment process that centrally involves the Chief whereby those appointed senior counsel by the Chief Justice as the appointor. We are extremely grateful Justice, be eligible to be appointed Queen’s Counsel for and wholly endorse the continuing involvement of by the Governor-in-Council. the Chief Justice in this role with the continuation of Le Stage International du Barreau de Paris. Amy Brennan Such reinstatement, is sought by some two thirds of the pilot process for the appointment of senior counsel those presently holding the office of senior counsel in implemented last year, with appropriate support from and for the State of Victoria to whom I have written on the Bar. n examination of France’s It may be fair enough that lawyers are not that well this issue. It is a reinstatement of form which confirms No change will be contemplated without consultation legal system highlights some respected – lawyer bashing is a popular sport in this the essential role of the Chief Justice as the final arbiter with the Chief Justice and the Attorney General as any of the many contradictions country too – but surely judges are well respected at on who has earned the professional distinction and can change would necessarily involve revisiting the role of of French society. The most least? Not so. Since the days of Napoleon’s success over only enhance the standing of the Victorian Bar, and in the Chief Justice as appointor. highly respected members the French royalty and their raft of loyal judges, judges turn the standing of the Supreme Court. My priority, and that of the Bar Council, is to assist of society in France are are regarded warily. They are not appointed by the 1 Press release 12 December 2012. the Chief Justice with the continuation this year of the not doctors and lawyers. Rather, the best and brightest State. They too are the product of a graduate education pilot process. The process has worked well, with senior postgraduatesA in France go to L’ENA (L’Ecole nationale institution. As such, they begin their career very young 2 Supreme Court (Miscellaneous Civil Proceedings) Rules 2008 (Vic) O 14.10. counsel in and for the State of Victoria continuing to d’administration). L’ENA is a graduate institution, which and they are not particularly well paid, even as the years earn the respect of the Courts and clients in this State, educates the vast majority of France’s senior civil service. draw on. They are certainly not revered. 3 Supreme Court (Miscellaneous Civil Proceedings) Rules 2008 (Vic). interstate and internationally. Public servants, alongside academics, sit at the very top of Judges are not considered law-makers in France. The the society tree. Government makes the laws. Judges are not even widely

36 VBN VBN 37 news and views

As for the second four weeks, Since the days of Napoleon’s success over the The knowledge that one won’t be we were each allocated a law firm interrupted with words common to French royalty and their raft of loyal judges, judges according to our preferences. our benches such as “Ms Brennan, news and views news are regarded warily... They are certainly not revered. I practice predominantly as a criminal get to the point,” allows for the use of defence barrister so I elected to be considered to be the ones who This coming together of people alliteration, repetition and word play placed in a criminal law firm. I was interpret the law. They pronounce from all around the developed, and (a full time hobby for most literary extremely fortunate to find myself upon the law by handing down less well developed, world provided a inclined French people) in a way that placed at Le Borgne – Saint-Palais decisions but their decisions rarely fascinating opportunity for exchange. can give breathtaking results. Associés. Apart from it being superbly extend beyond one page. If the Some of the participants provided It is true that this feature of the well located in the heart of Saint law requires interpretation, the incredible insights into difficulties system can also lead to interminably Germain, the head partner, Jean public and lawyers alike turn to the dealing with corruption within boring addresses that are unable to Yves Le-Borgne, is one of Paris’ most writings of law professors, such is the their political and legal systems. My be cut short. In turn, this can lead to celebrated criminal lawyers. In 2010- eminence of academics. colleagues from Argentina, Romania very long running cases. Countering 2011, he held the role equivalent to With all of this in mind, you might and the Democratic Republic of Congo this effect are the sitting times of the the Law Society Vice-President in be surprised to find out that the come to mind. Others, particularly courts. The French are well known Paris. He is commonly regarded as French, nonetheless, are very proud those from countries like Tunisia and for their reluctance to give up the one of Paris’ legal profession’s best of their legal system. In a survey Mauritius, where there is a significant 35 hour working week, yet a 35 orators with a most charming, operatic conducted in 1999/2000, just under Islamic population, talked of the hour week is a very far cry from the voice. His partner, Christian Saint- 50% of the public polled stated that strong influence that religion has hours worked by those in the legal Palais is also an excellent criminal they had “quite a lot” or ”a great deal” on their legal system. Lawyers who profession in Paris. It is true that In France, lawyers seem to have far greater scope lawyer and proved to be a wonderful of confidence in their justice system1. came from Greece and Italy talked of a lawyer’s day doesn’t often begin mentor to me. to deliver exquisitely crafted monologues, incorporating A good demonstration of the pride the challenges they face conducting before 10 to 10.30am and that many Although France does not have just the right touch of theatre. This is mainly because, that the French take in their legal large litigation matters in context of the courts don’t begin sitting until a split profession, there are a great system is the Stage International of governmental instability leading 1 or 2pm, but the courts don’t cease during these types of addresses, advocates in France many senior lawyers who specialise du Barreau de Paris. Every year, in to changes in the law overnight. My sitting until they’ve “completed the in advocacy and act almost as ‘in- hold the floor and it is almost impermissible for a judge October and November, the body experiences reminded me that there list” or at least concluded with the house counsel’ within their own equivalent to the Paris Law Society, in is so much for us to be thankful for allocated witnesses for that day. This to interrupt the flow. firms. It is also not uncommon for conjunction with the Paris equivalent in this country. regularly leads to courts sitting until firms without specialist advocates without feeling discriminated against the French system and across the of Leo Cussen (if Leo Cussen were 7 or 8pm and can result in the court n addition to providing an to ‘brief’ senior lawyers from other by their male peers. His response was world, the traineeship highlighted compulsory to all lawyers wishing sitting until as late as 2 or 3am. opportunity to learn about the legal firms to do the appearance work for that in his view “It’s necessary to call some startling similarities. Almost to practice in Melbourne), runs I These sitting hours are particularly systems of each of the participants, the litigious matters. a cat a cat.” That he would say this to unanimously, the participants and an eight week ‘traineeship’ for family un-friendly. You might be traineeship gave me a comprehensive Another surprising contradiction a room of international lawyers, 32 of French lawyers complained that international lawyers. The only three forgiven for thinking that this was introduction to the proud French civil is that in some respects, the French whom were women, astounded me. access to justice comes at too high pre-requisites for participation are simply in keeping with France’s system. The four weeks of classes ran civil system provides greater scope a price for most ordinary citizens. being a qualified lawyer, being under traditionally patriarchal society. espite all of this, 64% of judges a little bit like a mini Bar Readers’ for formidable advocacy than the For the French at least, this 40 years of age and speaking French. Elements of this traditional in France are female. This Course. The main classes covered the Australian adversarial system. D complaint resonates despite their The traineeship consists of an orientation definitely still resonate. is acknowledged by the French as basics of the set up and workings of The existence and scope for cross- system being far less costly than that initial four weeks of classes at When the (equivalent) head of the being the result of the fact that the the French courts within the various examination is more limited, in Australia. Another unanimous L’Ecole du Formation du Barreau international relations section of graduate institution responsible for jurisdictions, the French separation of although a practice of allowing far complaint was that the wheels of de Paris, followed by four weeks the Law Institute took one of our training judges is a selected entry powers, the civil system, ethics, civil more significant cross-examination justice move too slowly. Perhaps the of work experience in a Parisian classes, he told us that a significant institution. In their late twenties, procedure and French legal history is developing, particularly in the most remarkable of the universal law firm (France does not have percentage of female lawyers in Paris when most candidates seek entry, with a bit of politics thrown in. The criminal and commercial courts and complaints was that legal aid (or its a split legal profession). In late practiced in family and social law female candidates outperform their remainder of the classes provided a in international arbitration. When equivalent) is drastically lacking in 2012, I was fortunate to be one of (social law incorporates employment male counterparts by a significant brief introduction into a number of making opening addresses, legal funding. Hopefully, in seeing our own the participants among 52 in total. and social security law). He analysed margin. Whether this predominance different areas of the law. argument and particularly final problems reflected, we all left Paris Of the 52 participants, there were this result by stating that this is of women at the top level of the The teachers were generally of an addresses in France, lawyers seem somehow strengthened in our resolve 32 women and 20 men from 35 because these are the areas of the legal system in France is helping to exceptional quality. Our international to have far greater scope to deliver for change. I, for one, have at the very different countries. Only seven of law that most interest females. I broaden the representative nature arbitration class was held at the exquisitely crafted monologues, least resolved never again to tell a the participants came from English raised my hand and explained to him of the judiciary is altogether another illustration by guy shield International Chamber of Commerce incorporating just the right touch bad lawyer joke. I can now see that speaking countries. Although for that in Victoria, when we look at the question. Of those postgraduate and was conducted by a member of of theatre. This is mainly because, they are dismal when told in most of the others, English was large numbers of female barristers students who successfully become its Secretariat to the International during these types of addresses, any language. their primary second language, it working in family law and the judges, they are overwhelmingly Court of Arbitration. Our class on advocates in France hold the floor was especially pleasing that the Children’s Court, we tend to analyse young white women from very 1 World Values Survey 1999-2000. French legal structures was taken and it is almost impermissible In the same survey in 1995-1997, common language between us the results by questioning whether wealthy Parisian families. by the Managing Partner of Clifford for a judge to interrupt the flow. just in excess of 30% of Australians remained French throughout our this isn’t because these are the areas In amongst the many contrasts held the same level of confidence in Chance in Europe. Questions are reserved to the end. time together. of the law in which they can work and contradictions revealed within our justice system.

38 VBN VBN 39 news and views Why Say Yes? news and views news

Victorian Bar News recently spoke with three outstanding former leaders of our Bar about their recent appointments to positions other than judicial office. We asked them about the nature of their appointments, why they said “yes” to the appointment and what they hope to achieve in their new role. Georgina Costello

The Hon Justice Middleton Robin Brett QC The Hon Justice Middleton of the Federal Court has been Robin Brett QC has been appointed as the Inaugural Inspector appointed as a part-time Commissioner to the Australian of the Victorian Inspectorate Law Reform Commission What is your role? What is your role? My principal task is to monitor the use of coercive powers The Australian Law Reform Commission (ALRC) by Victoria’s integrity bodies. These bodies include the conducts inquiries – also known as references – into Independent Broad-based Anti-corruption Commission areas of law at the request of the Federal Attorney- (IBAC), the Ombudsman, the Office of the Chief Examiner General. My role as a part-time Commissioner is to and the Auditor General. be involved in references in a supervisory way and I can investigate allegations of corruption make suggestions based upon my own knowledge and made against Victoria’s integrity bodies and make Stephen O’Bryan SC experience. recommendations to those bodies about what they For example, at the moment I am involved in the should do, as well as making recommendations to the Stephen O’Bryan SC prevent corrupt conduct and police tolerated, and corruption risks are Copyright reference, which was started before I joined the Victorian Office of Public Prosecutions. Ultimately, misconduct. exposed and addressed. Also that Stephen O’Bryan SC has been ALRC. In this reference, the ALRC was asked to consider “I guard the guards”. IBAC itself eventually becomes appointment as Commissioner of Why did you say “yes” to this role? the operation of the Copyright Act 1968 (Cth) in the digital For example, I can receive complaints about the use recognised in Australia as a leading the Independent Broad-based Anti- I am honoured to have been environment, and consider concepts such as fair dealing, of coercive powers by Victoria’s integrity bodies. I also apex integrity agency from a best corruption Commission (IBAC) appointed IBAC’s first permanent reasonableness and fair use. monitor how these bodies use their power to summon practice point of view. Commissioner for the next five I also contribute suggestions as to what areas the ALRC people to provide information or answer questions What is your role? IBAC will undertake activities years. I hope that my experience should investigate, as the ALRC makes recommendations to compulsorily in circumstances where the person cannot IBAC is Victoria’s first anti-corruption intended to build both organisation in the fields of administrative and the Attorney-General concerning what review should place refuse to answer questions based on a claim of privilege body with responsibility for and individuals’ resistance to regulatory law, and my experience of Australia’s laws. I hope also to become actively involved in against self-incrimination. I note that a person’s answers identifying and preventing serious corruption, but corruption prevention involving statutory interpretation, considering other references to be made to the ALRC. cannot be used to prosecute them for anything other than corrupt conduct across the whole really is everybody’s business. means that I can deal with issues perjury, but the information they provide can be used to public sector. I am looking forward to working Why did you say “yes” to the role? and make decisions on things which prosecute another person. I also prepare annual reports As Commissioner of IBAC, I collaboratively with our partner I have long respected the work of the ALRC. I enjoy readily draw on my work at the Bar. and special reports about my work. am an independent officer of the agencies across the integrity system researching and considering law reform issues. The ALRC It is an exciting time to be heading I lead a small office of six, with the ability to expand in Parliament of Victoria responsible for and other public bodies to give has made a great contribution to jurisprudence in this IBAC, which now effectively sits at future as needed. My appointment is for five years and the strategic leadership of IBAC to Victorians confidence that public country, which is exemplified by the number of references the apex of Victoria’s integrity system. I can only be removed by Parliament. achieve its principal objectives and money is not being misused, and made to its work by judicial decision makers, academics and For the first time in our state’s history, functions under relevant legislation. that public officials are carrying legislators. Indeed, in past judgments I have made reference Why did you say “yes” to the role? there is an independent body with In summary, the primary purpose out their duties lawfully for all to ALRC reports. I have had the highest regard for the ALRC I had been at the Bar for over 30 years, since 1981 and I the ability to coordinate all integrity of IBAC is to strengthen the integrity Victorians. and the excellence of its reports for many years, and I was had never done this sort of work before. The attraction of bodies across the whole public sector. of the Victorian public sector, and Much has been said publicly very pleased to be offered the position. doing something completely different was strong. I have The fine democracy that Victoria to enhance community confidence about suggested deficiencies always liked learning about new things and this work is enjoys can only be enhanced by a What do you hope to achieve in this role? in public sector accountability. We in IBAC’s general public sector entirely new as the role has not existed before. well-functioning integrity system, My appointment is for three years. I would like to actively do this by identifying, investigating jurisdiction, which is narrower and it is a privilege to contribute contribute to the forthcoming references and I would like What do you hope to achieve in this role? and exposing serious corrupt in certain respects than that of within this new system as IBAC’s to see them through to completion. It would be satisfying My primary objective is to play a part in making the conduct and police misconduct; equivalent bodies in other States. Commissioner. to have input into developing the law apart from in my new integrity system work. I aim to make it work preventing corrupt conduct and Whilst ultimately this is a matter judicial role, where I can merely consider the law on a without paying attention to the criticisms of the system. police misconduct, educating the What do you hope to achieve in your for government, if in practice case by case basis. I hope that the references I am about I am well aware of the power I have to make reports public sector and the community work as IBAC’s first commissioner? shortcomings in this regard are to contribute to will help inform the development of about the manner in which the new system is operating about the effects of corrupt conduct My vision is that Victoria will prove identified, I will not hesitate to legislation and jurisprudence, and assist the work of the and I intend to use those powers to the extent that may and police misconduct and improving to be an environment where corrupt recommend any necessary statutory courts and the legislators. be necessary. the capacity of the public sector to behaviour in public office is not amendment to Parliament.

40 VBN VBN 41 news and views

His father had graduated in medicine invariably short and hand-written in time because of temperamental from St. Andrew’s University. His the folds of the large sheets of brief differences with the President of the baptismal names were Hayden paper that were then common. He Court, Mr Justice Higgins. news and views news Erskine, Erskine being a family often appeared as leading counsel, Other personal matters should be name not connected with the famous though he never took silk. He refused mentioned. By 1901, Starke’s career advocate Thomas Erskine. When an offer by Deakin when Prime had reached a point where he could That’s Sir Hayden Starke was six Dr Starke Minister to become his legal adviser buy a house in Toorak Road, Malvern, died of typhoid contracted on the on the ground that the position did not as a family home. In 1909 he married goldfields, leaving his widow with four carry a right of private practice. Margaret Mary, daughter of John children and without proper means He was twice invited to apply for Gavan Duffy, a leading solicitor and Hayden Starke of support. She took employment as silk, in 1912 by Chief Justice Sir John politician whose family had been a post-mistress in country towns and Madden, and in 1918 by Chief Justice prominent in both spheres in colonial eventually at Clifton Hill. The young Sir William Irvine. Both invitations Victoria. There were two children of Hayden attended various government were declined. The reason given for the the marriage, Monica, who became a schools and, for the last six months first refusal was that Starke wished to teacher and later wrote a history of the J D Merralls of his schooling, Scotch College retain the flexibility that junior status Alexandra Club, and John, barrister in East Melbourne, as a scholar, to allowed – he was not bound by the two and judge. Starke had been raised never met Sir Hayden Starke. He died sharpen his knowledge of Latin in counsel rule or the concomitant two- as a Presbyterian but his wife was of two years before I became Associate to preparation for the law course. Family thirds rule which together restricted an Irish Catholic family and it was Sir Owen Dixon. But Dixon often spoke of circumstances would not permit his court appearances by KCs – and for understood that the children were to him and I felt that I had known him. I did enrolling as a regular student at the the second, that he might have gained be of the Roman Catholic faith. know his son, Sir John Starke, who had University and so he took articles some professional advantage by not Monica was a devout Catholic. John, some of his characteristics, not the least at the solicitors’ firm of Weigall and having been at the war. who attended Melbourne Grammar being a forceful personality. Dobson. He attended University and Trinity College but received II did not meet Sir Hayden but I saw him once. In my lectures as an articled clerk and Early days on the Catholic instruction, was a lifelong first year or so at the University my parents and I were was active in students’ affairs as the High Court agnostic. As a token of gratitude to his invited to dine with friends who at the time were living secretary of the Law Students’ Society. mother and sister Starke paid for them at “Myoora” in Irving Road, Toorak. Our host was a He was also a keen rower. In 1891 n 1920, on the death of Sir to visit the United Kingdom later in prominent solicitor at whose firm I was to be what is now he was awarded the Supreme Court , an original the year of his marriage. They were called a summer clerk. We were mid-way through dinner Judges’ Prize for articled clerks.ks. I member of the Court, Starke was passengers on the “Waratah” which when the double doors at the end of the room opened In that year the two branches of appointed to the High Court. He was disappeared without trace between and a tall solidly built straight-backed man with close the legal profession were formally the first Justice appointed from the Durban and Cape Town. Starke was the cropped white hair entered, a lady of grace and beauty amalgamated by statute, though the junior Bar and only the third who had only individual who was represented on his arm. “That’s Sir Hayden Starke”, whispered our solicitors’ profession and practice at not participated in the Constitutional by counsel in London at the board of host who was normally in awe of no-one but himself. the Bar in fact remained separate. Conventions or had not been involved marine inquiry into the disappearance. A glimpse of Sir Hayden was enough to explain his The articled clerks’ course was in politics. He had a huge practice in He resigned from the High Court tone of voice. The impression of the bearing of the intended for the professional training the High Court. In its first three years after thirty years, in January 1950, old couple was indelible. of solicitors and until fusion it was he appeared in seventeen cases, in and died on 14 May 1958. He never Similar words regularly occur in descriptions not possible for an articled clerk to fifteen as single counsel, between took extended leave while a judge of Starke. In The Measure of the Years R.G. proceed to the Bar. Starke was among 1908 and 1912 he appeared in more and, except for a brief Pacific Menzies spoke of “his massive legal ability the first to take advantage of the than fifty cases alone, and by the time cruise, never left Australia. He was and formidable personality”, adding that ability to do so given by fusion and of his appointment he had appeared appointed KCMG in 1939 but was not “he would not temper the wind to the shorn in 1892, at the age of twenty-one, he in at least 210 cases. made a Privy Counsellor. lamb”. Elsewhere are references to his “blunt, commenced practice as a barrister. He was also appointed a deputy Though Starke had appeared gruff personality”, “rugged individualism”, He began practice at the time of judge of the Commonwealth often before the High Court in a wide “formidable personality”, “dominant the collapse of the Victorian economy. Arbitration Court but he resigned range of matters he had not been presence” and “marked independence of There was little work for a young his commission after a short engaged in any of the cases in which character” and descriptions of him as a barrister and it was poorly paid. the important doctrines of the mutual “robust and formidable figure”. On his Starke walked between Clifton Hill Sir Owen Dixon spoke immunity of Commonwealth and death, almost fifty-five years ago, Sir Owen and chambers to save a tram fare. of “his strong intelligence, State instrumentalities and reserved Dixon spoke of “his strong intelligence, clear But through industry and force of State powers were adopted. Those mind and great legal knowledge” and the personality he built a practice and by clear mind and great doctrines were founded upon United “strength of his mind and character”. the turn of the century he was a leader legal knowledge” and States models in which case law Some biographical details. Starke was born of the junior Bar. He practised in most the “strength of his had an important part. In 1910, in February 1871 at the goldmining town of jurisdictions in court and also wrote Professor William Harrison Moore, Creswick, at the height of the rush to be rich. many opinions. His opinions were mind and character”. of Melbourne University, wrote that in

42 VBN VBN 43 news and views

Rich, Evatt and McTiernan often joined in Dixon’s judgments, in Starke’s Evatt and McTiernan but they agreed be persuaded to retire. Conduct of roaming the country.” When Latham opinion without proper consideration of the issues by themselves. “The parrots”, to remain and to attempt to work with that kind was anathema to Starke. sought to persuade him to travel to them as best they could. This was not Third, Latham, an austere nineteenth Perth in 1940 he replied, “I resent news and views news he called them. “The parrots will follow Dixon.” He felt sidelined. difficult with McTiernan who was a century rationalist, known as “the your dirty insinuation that I stayed mild-mannered equable man whose schoolmaster”, did not possess the on in Sydney to make a bob out of America the doctrine of the immunity Starke which indicated the price of his during the argument of cases but main deficiency as a judge, apart personal skills to control fractious the government, and also your silly of instrumentalities had become concurrence and which contributed to was a non-participant in judgment. from lack of extensive professional colleagues. schoolmaster attitude toward me. I axiomatic and that the modern some of the apparent inconsistencies Powers was out of his depth (the experience, was an absence of Fourth, the Court had come to be think an apology is overdue and in cases had served “merely to make its in the reasoning. However that may Court’s proceedings were ultra vires, willingness to accept a proper share dominated by Dixon, the non-pareil future … keep your criticisms of me application and to point to the limits be, Starke was always careful to “beyond Powers”, as Dixon would of the work. Evatt was different. whose reputation as a jurist was to yourself unless I ask for them.” of its authority”, one of those limits confine the decision in the Engineers’ have it). Rich was able but indolent. Able, ambitious and capable of great already recognised abroad. being that a distinction had been Case to the proposition I suspect Starke, surprisingly, participated in application, he was already showing Rich, Evatt and McTiernan often A diligent jurist adopted between functions which he contributed, that the doctrine many joint judgments. Important signs of the instability that beset him joined in Dixon’s judgments, in hroughout this period were essentially governmental and of “implied prohibition” finds no cases were decided but the Court’s in his later career. He too preferred Starke’s opinion without proper Starke produced many trading or other private enterprises place where the ordinary principles jurisprudence was not enhanced. to write judgments only in cases consideration of the issues by distinguished judgments. carried on by the government. Six of construction are applied so as that interested him and to join with themselves. “The parrots”, he called T It must not be thought that his months after Starke’s joining the to discover in the actual terms of Division in the Court another, usually Dixon, in those them. “The parrots will follow Dixon.” antipathy towards his colleagues Court a twenty-five year old barrister, the instrument their expressed or that did not. He felt sidelined. His personal change began with the diverted him from his duty as a judge. RG Menzies, appearing for a trade necessarily implied meaning. On For Starke, duty’s slave, the relations with all but Dixon broke appointment of Dixon I have taken, as a sample, volume 60 union against State instrumentalities Starke’s death Dixon pointedly said: circumstances of their appointment down so badly that he veven to on the death of Higgins of the Commonwealth Law Reports, conducting what were essentially A were bad enough, but their attitude communicate off the bench except The decade at the beginning of which early in 1929. The Court began to in which some of the cases decided trading activities, sought to rely on to judicial work offended him. His by curt, often offensive, notes. Many he took office was one of great and move beyond provincial backwaters in 1938 are reported. Starke sat that distinction. adherence to a strict code of honour of these notes, in Starke’s large bold rapid constitutional development. into the mainstream of international in twenty-two of those cases and He was interrupted by Starke, the yielded little to human frailty. These hand, are amongst the Latham papers The course of decision in this Court common law jurisprudence. But a delivered his own reasons in each junior member of the bench, who feelings were manifested in hostility in the National Library, some written appeared to many to take a new further change, which affected the of them. They are clearly expressed, described the distinction as nonsense towards the newcomers as well as to vertically as well as horizontally direction. No one who at that time conduct of the Court throughout the conventional, judgments of high and invited him to advance a broader Gavan Duffy and Rich, both on and off on the small court notepaper. Not was familiar with the Court could fail thirties and even beyond, occurred quality. In twenty-one cases he was case which attacked the American the bench. He participated less often even Dixon was spared. In letters to to understand that the strong judicial at the end of 1930 when the Scullin with the decision of the majority. doctrines and depended on the simple in joint judgments and adopted the Latham Starke suggested that Dixon character, clear vision and notable legal government – in the absence of Only once did he dissent. proposition that the Constitution, as practice of refusing to show copies of was canvassing support from less equipment of Sir Hayden Starke had Scullin and his Attorney-General If his sturdy individualism appeared part of an Imperial Act of Parliament, his judgments to Evatt and McTiernan energetic members of the Court. played a decisive part in establishing Brennan – appointed two young in his work at this time it was likely should be interpreted as a statute before they were delivered. This led to He wrote: constitutional doctrines which up to Labor Party politicians to fill the to be in a libertarian cause. In several ordinarily is. The invitation was taken his writing more of his own judgments. that time had not received the support places left by the departure of Knox … it is gravely detrimental to the cases involving contempt of court up by the rest of the Court and was These were invariably concise and of a majority of the Judges. and the resignation of Powers. Isaacs prestige of the HC and its independence he was both sceptical of the effect gratefully accepted. directed to the issues of the case succeeded Knox as Chief Justice and, that whenever a grave difference of of newspaper articles alleged to Hence the famous Engineers’ Case, The decade of the twenties was the rather than to the opinion of posterity. on his appointment as Governor- opinion is disclosed the ‘parrots’ always be calculated to interfere with the which changed the course of the least distinguished period in the High Because of their brevity they are now General eight months later, was reach the same conclusion as D. I administration of justice in appeals interpretation of the Constitution Court’s history. The original Justices, cited less often than the quality of the succeeded by Gavan Duffy, then blame him a good deal for he angles pending in the Court and lenient in and hastened the pace at which the Griffith, Barton and O’Connor had underlying thought deserves. aged seventy-eight. Thus for five for their support and shepherds them his suggested penalty when others Commonwealth assumed ascendancy gone. The new Chief Justice, Knox, If it were hoped that the tension years the Court was led by an old into the proper cage as he thinks. were severe. “I regard this allegation as over the States in the distribution whose father had been a founder between the Justices would relax with man who lacked both interest in its frivolous”, he said in one case, “there of functions under it. The main and the managing director of the the appointment of an active Chief Dixon rejected this suggestion telling administration and the will to deal is no fear of the article in any way judgment was that of the Chief Justice Colonial Sugar Refining Company, Justice that hope was to be dashed. Starke that he could not prevent others with the friction between members interfering with the due determination Sir and Justices Isaacs, was an able advocate but, in Sir For this there were four reasons. from adopting his judgments. In fact of the Court that the appointment of the appeal or of any prejudice to the Rich and Starke, none of whom had Owen Dixon’s words, he was capable First, the man appointed, Sir John at times he helped Rich in writing a of Evatt and McTiernan provoked. mover such as would justify the Court been party to the early decisions. The of almost anything yet he was not Latham, had been Starke’s pupil at judgment that was contrary to his own. Starke’s wife was a daughter of interfering by summary and arbitrary judgment was written by Isaacs. It is capable of taking a really serious the Bar. Second, his appointment The Court sat in all the State Gavan Duffy’s half brother but the process of contempt.” And “The Court not well constructed and its language intellectual interest. The intellectual was the product of a series of capitals. Starke refused to travel to two were never close and Starke’s should … leave to public opinion the in some parts is extravagant and leader of the Court was Isaacs but political manoeuvres to procure the what he called “the outstations” if he sense of propriety was strained by reprobation of attacks or comments rhetorical. his temperament was such that eventual replacement of Lyons as could avoid it: “… it becomes more the Chief Justice’s virtual withdrawal derogatory to or scandalising it; or Higgins delivered a separate, he often led only himself. Higgins Prime Minister by Menzies. Menzies and more onerous to the Judges as from the activities of the Court. In in serious cases leave to the proper concurring judgment in language kept his own counsel though his was to take Latham’s electorate they advance in years. No provision 1935 Gavan Duffy sat in only eight authorities the vindication of the Court more restrained. Sir Owen Dixon told emotional leaning was towards of Kooyong and, after a discreet has ever been [made] in the outer of 80 Full Court cases. by the ordinary process of law …” me that he had seen Isaacs’ original Isaacs’ views if not to him personally. interval, Latham was to be appointed States for their comfort. They are like Some of the Justices considered The High Court operated throughout draft with annotations marked by Gavan Duffy took an active part to the Court. Gavan Duffy was to and are treated as Carpet Baggers resignation on the appointment of the 1930’s with only six Justices,

44 VBN VBN 45 news and views

If his sturdy individualism appeared in his work pages as one of a majority of five. at this time it was likely to be in a libertarian cause. Commentators are often dazzled by Dixon’s sixty-five page judgment and news and views news are moved to cite it as the basis of the the vacancy arising from Isaacs’ of war, either by preparing for war in it was proposed to tighten a rule decision. But the 77 year old Starke’s, appointment as Governor-General and the future or carrying on a war when of his Club barring enemy aliens. in my opinion, properly stands beside his replacement from within the Court it exists. This language is echoed The Club’s history records that the it. Latham and McTiernan dissented. not having been filled, as an economy in Starke’s judgment in 1942 when proposer “moved the new rule with An odd incident occurred shortly measure adopted by the government speaking of the Court’s decision in pleasure and asserted that it ‘gave before the hearing. The Solicitor- in the Depression. The situation the first Uniform Tax case: him a lively sense of satisfaction at General for the Commonwealth became worse when Latham took the prospect of getting entirely rid of visited Starke at home and suggested [I]f all legal standards be abandoned leave in 1940 to become Minister the very objectionable companions that because Lady Starke had a small and the Court surrender to the Plenipotentiary in Japan and from we have from time to time had to holding of shares in one of the banks principle that the defence power 1942 until 1944 while Dixon held put up with in the club”. Starke her husband should not sit in the extends to anything that can be a similar position in Washington. alone questioned the propriety of case. Starke angrily directed him to conceived, imagined or thought of as Only five Justices remained. the proposed rule, dismissing it as tell his master that if he wished to aiding the safety and defence of the The Court was not restored to seven “stampede legislation”. make an application he should do so Commonwealth, then [the difficulties of until May 1946. As well as its normal After the war it was business as in open court. Evatt did so and the ascertaining the nature and character civil and criminal work the Court had usual. Starke sat in what the press application was rejected. The episode of an Act] will be multiplied and the cases challenging the constitutional likes to call two “landmark” cases. recalled an event in Starke’s career Court launched upon inquiries that validity of wartime national security The first concerned the attempt by at the Bar. The irascible Hodges, a cannot be described as judicial. measures and those involving attempts the Chifley government to establish judge of the Supreme Court, was rude to avoid the stringency of those And, in another case, “We have TAA as a monopoly airline within to Starke in Court to a degree that measures. In one respect matters lived so long in an atmosphere of Australia. The Court, comprising Starke considered insulting. Before improved. Evatt’s resignation to make-believe in connection with five Justices, held the legislation lunch they found themselves beside return to politics in September 1940 the regulation of industry that it is invalid. The main interest in Starke’s one another at the urinal of their Club. removed a burr from the saddle. His hard to return to realities.” In yet judgment is that he accepted a line Hodges apologised for his conduct but successor, the New South Welshman another, he referred to “irritating of reasoning of Dixon in dissent was met with the retort, “How like you , was a far more orders and restrictions upon freedom in a series of cases, known as the Hodges. You insult a man in court and congenial colleague. Exigencies of the of action which [are] arbitrary and transport cases, in the 1930s to the seek to apologise in a urinal.” war induced greater harmony though capricious, [serve] no useful purpose, effect that an Act “which is entirely The Banking case was Starke’s last personal differences did remain. and [have] no connection whatever restrictive of any freedom of action major case but not his last case on Starke had been junior counsel with defence”. These sentiments on the part of traders and which the bench. He stayed on until the end for the plaintiff in the First World were voiced repeatedly in dissenting operates to prevent them engaging of January 1950 and Rich until May War case of in which judgments upon the validity of war- their commodities in any trade, that year. They were succeeded by the validity of Commonwealth time measures. inter- or intra-State, is … necessarily the gentle, scholarly regulations fixing the price of bread In the other group of cases, obnoxious to s. 92”. The adoption of of the Supreme Court of Victoria and had been upheld by a majority involving attempts to avoid national this reasoning led in the 1950s to the the brilliant Sydney KC , of the Court. Isaacs delivered a security regulations, Starke rejected rejection of many of the propositions who many believe had been the real Bar and there was a rapprochement institution to which he belonged? florid judgment to the effect that disingenuous argument: “An ingenious found in the 1930s cases and to the architect of the banks’ victory. In 1952 between them after a turbulent It is often hard to detach the man in time of war the limits of the argument has been presented to the acceptance for forty years of a new Dixon succeeded Latham as Chief relationship since John’s childhood. from the circumstances of his life Commonwealth’s power to make Court, but that is all that can be said in approach to section 92. Justice. And so, for twelve years, all Starke died in May 1958. No portrait and even those who knew Starke laws for the naval and military its favour. It fails…” The other case was Bank of NSW lived happily ever after. of him was painted and no place bears best saw him differently. I sent a defence of the Commonwealth were As well as his judicial work during v The Commonwealth – the Bank It is sometimes said that Starke his name. His work survives only in draft of my piece about him for the “bounded only by the requirements the war Starke undertook a civilian Nationalisation Case – in which many and Rich hung on until the election the law reports and that is what he Australian Dictionary of Biography of self-preservation”. The plaintiff’s role in administering the release of the provisions of the 1947 Banking of a Liberal Government because of would have wished, though he would to his daughter Monica and son case, probably prepared by Starke, of the funds of persons who were Act were held invalid because their sympathy with its outlook and have been scornful of the suggestion John. John returned it with a short included contentions that the only interned as enemy aliens. In this they did not provide just terms for policies. In Starke’s case a desire to that it had any surviving value. note saying that I had caught the difference which the existence position he is said to have shown the acquisition of banking assets. deprive his old enemy Evatt of power The second half of his life old man well. Monica sent a three of war made was that it brought understanding and sensitivity to the Argument occupied almost three to appoint his successor was probably demonstrates that while robust page reply with corrections and into prominence the existence of plight of many whose only offence months. Evatt, then Attorney-General the dominant factor. independence may maketh the suggestions, asking with dismay the defence power but that power was not to have renounced their for the Commonwealth, led counsel Starke lived quietly in retirement, barrister the collegiate life of a how I could have got his life and remained the same whether there original nationality when they settled for the defendant. Starke delivered his health failing towards the end of Banco Court calls for other qualities character so wrong. was peace or war: the defence power here. This war-time work harkened a carefully reasoned, elegantly his life. He was proud of the success as well. Did his difficult personality I can offer only my parents’ host’s must be directed to the prosecution back to an episode in 1918, when constructed, judgment of thirty of his son John at the common law diminish his work or harm the reply, “That’s Sir Hayden Starke.”

46 VBN VBN 47 2013

CPD news and views Conference

The hilarious Sir Murray Enjoying dinner in Rivers QC was a the surrounds of The At a Glance highlight of the dinner Long Room

The 2013 Victorian Bar Continuing Professional Development Conference. Sharon Moore

he Bar’s 3rd annual CPD However, the Australian legal market is conference was held on shrinking. Professor Black challenged those Friday 15 and Saturday attending to look for strategic opportunities, 16 March 2013 and collectively and individually, in order to provided a great prosper commercially in an increasingly opportunity for members competitive legal market. He also urged to hear a variety of speakers, socialise away barristers vigorously to defend the ‘high Tfrom work and, of course, obtain all ten end’ advice work, traditionally associated CPD points right before the 31 March with the Bar, so that barristers maintain the cut-off date! perception (and reality) of true expertise, The theme of the conference was particularly as a point of differentiation ‘The 2020 Barrister – performance, with solicitors. Other suggested

improvements and progress’. The opportunities included expanding and Barbara Phelan, Fiona Barbara Phelan, Fiona McLeod SC, Maya Rozner and Stephen Palmer, Mark conference commenced on Friday afternoon improving alternative dispute resolution, McLeod SC, Maya Carmella Ben-Simon enjoying the pre-dinner drinks Hebblewhite and Roger Young Rozner and Carmella with key note addresses by the Victorian building direct relationships with major Ben-Simon enjoying the and Federal Attorney-Generals as well as a corporate and government clients and pre-dinner drinks panel of judges discussing ways to improve the possibility of expanding more into the advocacy. On Friday evening, Sir Murray growth area of international arbitration. Rivers QC, retired Victorian Supreme Court Despite Professor Black’s figures judge (aka Brian Dawe), graced us with his indicating that 70% of Victorian barristers presence in the hallowed Long Room at the were satisfied with the level of stress or MCC. We were the perfect audience for his pressure associated with their job, Dr Craig hilarious after dinner speech. Whilst the Hassed’s talk on ‘mindfulness for wellbeing dinner wasn’t worth any CPD points, for and sustainable performance’ attracted many, it was the highlight of the conference. one of the largest audiences for the Saturday morning’s program was also elective sessions. A General Practitioner, full of interesting sessions including Senior Lecturer at ’s an expert panel addressing threats Department of General Practice and author and opportunities for barristers in a of many books, Dr Hassed explained that

digital world and a keynote address by we “weren’t born worrying – it is a habit we John Wallace David Brustman Professor Black. Following the lunch got into” and that a “wandering mind is an SC amused by Sir Murray Rivers QC break there were various electives unhappy mind” and comes at an emotional before the conference concluded with cost. After presenting clinical and scientific a talk by Dan Mori. research on the benefits of mindfulness – or A session I found of interest was mental training – he ran attendees through Professor Black who presented challenging a simple mindfulness technique to reduce and encouraging facts and figures stress and improve performance. It is hard about the Bar’s current and projected to say whether it was a reflection of the performance, particularly in light of the benefits of the technique or the hour of structural changes and pressures in the the day, but some of the barristers were post GFC legal world. There was some observed asleep only minutes later… good news: as nearly 80% of all work The success of the conference was undertaken by members of the Victorian due to the hard work of Courtney Bow Bar comprises court appearances, or is and Sally Bodman from the Bar’s office Peter Atkinson, Sam court-related, the Bar is a very focussed together with the CPD Committee lead Andrianakis and provider of legal professional services. by Michael Pearce SC. Alexander Patton

48 VBN VBN 49 2013

CPD news and views Conference

The Hon Robert Clark MP, Fiona McLeod Ted Woodward SC and Kylie Weston-Scheuber On Fearless Defence in the SC and Michelle Quigley SC Face of Public Outrage

Dan Mori at the Bar’s third Annual CPD Conference Brian Walters SC

t the closing session of the Victorian Bar’s 3rd A annual CPD conference conference, former US marine lawyer Dan Mori paid tribute to the Victorian Bar’s important support in his defence of David Hicks. He said the Bar’s professional encouragement Helen Symon SC gave him confidence to speak out imparts some wisdom publicly in support of his client. Mori came to international attention in 2003 when he was assigned to defend David Hicks, one of two Australian prisoners in Guantanamo Bay. Just nine years into his career as a lawyer, Mori had almost no paid support, while the As Mori said, throughout the One of the things that kept Dan prosecution was fully resourced. history of our profession there Mori going through the years of Mori commenced his address by have frequently come times when work he did for David Hicks was the referring to US founding father John lawyers have to step up. hypocrisy of the treatment of his Adams, who accepted the brief to Mori was confronted with client. The kind of process to which defend the British soldiers accused of constant changes in the procedure he was subjected was deemed not the Boston massacre in 1770, despite his client confronted. Early in the good enough for a US citizen, and not other lawyers refusing to take the process, Mori expected David Hicks good enough for a British citizen, but case in the face of public outrage. to be arraigned the following week – it was good enough for an Australian. Despite the inflamed feelings but this was put off, week by week, He regarded the charges against around the trial, Adams conducted a the procedure and the allegations David Hicks as ‘manufactured’ and Hobnobbing at High Table successful defence, and his ringing changing, for what eventually the treatment harsh. final address is still quoted today: stretched to over eight months. Dan Mori said that although there Unable to obtain any satisfactory were some consequences for his New Barristers’ Lunch at Victorian Bar CPD Conference Helen Symon SC Facts are stubborn things; and court hearing for his client, Mori robust defence of David Hicks, there whatever may be our wishes, our spoke out publicly about the were no black vans coming to pick inclinations, or the dictates of our his year’s Victorian Bar CPD Conference featured in the face of what she referred to as the “tosser” element perversion of process to which him off the street. He said it was passion, they cannot alter the state a new addition: an informal New Barristers’ Lunch. one sometimes encounters when starting out at the Bar. his client was being subjected. worth remembering that in some of facts and evidence. This was hosted by Bar Chair, Fiona McLeod SC, That set the scene for lively discussion, both from the This was not expected, and the developing countries lawyers risk T and each of Michael Shand QC, Helen Symon SC, Jenny senior hosts and the juniors. administration could not accuse death and torture for the defence Batrouney SC, Michelle Quigley SC and Ted Woodward SC A mixed group of juniors was invited, ranging from him of being unpatriotic. He spoke of their clients. joined a table of junior members of the Bar. State Attorney- people starting the Bar Readers’ Course the following in a measured way of fundamentals Last year Dan Mori left the General, the Hon Robert Clark MP, also joined the group week to a few juniors of up to 5 years’ call. Participants of the rule of law, including a fair marines, where he had reached before heading into the main conference to deliver his also came from a mix of practice backgrounds. The trial and due process – lessons the rank of Lieutenant Colonel, keynote address. lunch was an enjoyable opportunity for some to renew learned from John Adams, amongst and moved to Melbourne where he The more senior barristers were asked to share with connections and for most to make some new ones. others. However, those responsible has taken up a position with Shine their tables five things they wished they had known when The event was modelled on the UK Inns of for prosecuting had moved so Lawyers. We have been fortunate to they were starting out. Fiona McLeod formally welcomed Court dinners; but with a view from the Hilton far from legal norms that they observe his contribution to the long attendees and got things off to a spirited start with her Hotel over the Fitzroy Gardens and the MCG it branded these concepts tradition of fearless advocacy for own tip. She shared her wish that she had known from had a distinctly Melbourne flavour. A great blending as radical. a client. the outset to trust herself and her judgment, particularly of youth and experience.

50 VBN VBN 51 2013 CPD Conference A Word, or Two, to the Wise

Attorney-General Mark Dreyfus QC speaks at the Victorian Bar CPD Conference Tom Danos, Deputy Chair Victorian Bar’s Pro Bono Committee

n Saturday 16 March 2013, at the Victorian t appears this review could have a significant impact Bar’s Third Annual Conference, at the Hilton I on the provision of ‘legal aid services’ throughout the Hotel, at 9.00am, before an audience of Commonwealth, with the potential for further ‘growth’ 150 eager barristers, the Hon Mark Dreyfus in the pro bono market. The extent of the review, and OQC MP, in his capacity as Attorney-General for the whether interested parties had been approached or Commonwealth of Australia, was invited to address invited to contribute, was not touched on in the Attorney’s on “Pro Bono – An Ethical Obligation or a sign of remarks. However, in a comment made after the speech, Market Failure?” the Attorney advised that the review has involved The Attorney introduced his address by noting: extensive consultation with stakeholders by the reviewing consultants, Allens Consulting Group. One hopes this I do, however, want to explore ways we can further promote assurance proves reliable, that all relevant stakeholders pro bono work, and to discuss with you the things that the are to be contacted, and that their views will be given government is doing, and thinking about doing, in this area. due consideration. And shortly thereafter followed with: The Attorney also noted that “governments clearly have a role to play in encouraging pro bono work, This is not to say that pro bono work should be used as a particularly by providing incentives for those engaged substitute for government funded legal services. Rather, in it”. To date, the ‘carrot’ style incentives to which the pro bono legal services form one essential element of a mix Attorney referred have been limited to solicitors, whose of services that the government and the legal profession pro bono contribution may be acknowledged when provide to enhance access to justice within the Australian tendering for paid government work. It would be of community. (emphasis added) considerable interest if a similar ‘incentive’ scheme Pro bono work is a ‘growth’ industry in this State. for the Bar, consistent with the obligations of counsel, To illustrate this one need only look at the pro bono could be designed and implemented. awards, which recognise the work that barristers have The Attorney was bountiful in his praise of counsel undertaken. Nominations for awards are received in who had appeared in pro bono matters, singling out two six different categories; a testament to the volume and well-recognised pro bono counsel, the late Ron Castan diversity of the Bar’s pro bono contribution. In addition QC and Bryan Keon-Cohen QC. Clearly the Attorney to these award-winning contributions are the less was extremely supportive of the work the Bar did in the prominent but equally commendable efforts of those area of pro bono and was keen to see it developed and participating, each day, in the ‘duty barristers’ scheme’. extended. As we all are, up to a point. None of this existed a mere five years ago. At least some of this unpaid effort stands in for what might once have been legally aided briefs. A potentially important development in this area was revealed by the Attorney’s observation that: To date, the ‘carrot’ My Department is currently overseeing the Review style incentives to of the National Partnership Agreement on Legal which the Attorney Assistance Services, which seeks to evaluate the referred have been efficiency, effectiveness and cost-effectiveness of the four legal assistance programs supported by the limited to solicitors, Australian Government – legal aid commissions, whose pro bono community legal centres, Aboriginal and Torres Strait Islander Legal Services and Family contribution may be Violence Prevention Legal acknowledged when Services. tendering for paid government work.

52 VBN The Hon Mark Dreyfus QC VBN 53 news and views

Jim Berg was one of the founders of the Koorie Heritage Trust Inc in 1985

news and views news Launch of the Victorian Bar Reconciliation Action Plan

The Bar helps address inequalities faced by indigenous communities. Sally Bodman

n Tuesday 29 January 2013 the The Victorian Bar has been at the forefront of Victorian Bar formally launched Indigenous rights for decades. In the mid-70s some a Reconciliation Action Plan of our members helped establish the legal aid (RAP) at an event in the foyer services in central Australia. Victorian barristers of Owen Dixon Chambers West. have represented Indigenous clients in many pro In October 2012 the Victorian bono cases and in landmark legal cases. More Bar Council became the first Australian Bar recently over the past decade barristers at the Oto adopt a RAP to address the difficulties and Victorian Bar have found practical ways to address inequalities faced by the Indigenous community underrepresentation of Indigenous people among in building a career at the Bar, in achieving the ranks of barristers. But we recognise there is equality before the law and in having full much more to be done. After Mick Dodson in 1981, access to justice. we did not see a second Indigenous barrister sign Indigenous equality is increasingly a focus the Bar Roll until 2006. This RAP is a mark of our of corporate Australia and the legal fraternity is commitment to being part of a solution and to no exception. The Law Council of Australia, the being active in addressing it. Law Institute of Victoria and several law firms an Star, Chair of the Bar’s Indigenous have also developed plans to ensure that good Lawyers’ Committee (ILC), introduced intentions are translated into tangible results. well-known and highly respected The RAP was developed by a working group D Gunditjmara Elder, Jim Berg. Jim was the first of the Indigenous Lawyers’ Committee over an 18 Koori employee of the Victorian Aboriginal Legal month period under the leadership of Dan Star Service (VALS) which had been established and codifies existing and planned initiatives as by the late Ron Castan AM QC, Ron Merkel well as providing a roadmap for their expansion, QC, Gareth Evans QC and the late Professor development and wider adoption over five Louis Waller. In 1985 Jim established the Koorie years. Reconciliation Australia was consulted Heritage Trust Inc together with Castan and throughout and gave their approval to the final Merkel. Jim has been CEO and Chairman document. The Bar’s indigenous barristers also of both VALS and the Koorie Heritage Trust. provided significant input into the process. He spoke about the journey to protect, preserve Initiatives include mentoring and peer support Daniel Star, Chair of Members of the Jindi and promote the living culture of Aboriginal the Bar’s Indigenous Worobak Dance Troupe programs and a work experience program for people and of the help and support they had Lawyers Committee Indigenous secondary school students, and a spoke of the Bar’s received from members of the Victorian Bar in commitment to series of policy financial supports designed to the struggle to achieve equal access to justice reconciliation assist Indigenous barristers to achieve success for Indigenous Australians. in their chosen career. Dan Star spoke of the Bar’s ongoing There are also initiatives for improved commitment to reconciliation. Linda Lovett legal services for members of the Indigenous and Robin Ann Robinson, two of the Bar’s five community as clients of barristers. currently practising Indigenous barristers, The launch event commenced with a Welcome spoke of their inspiration to practise law and to Country by Wurundjeri Elder, Georgina the support they had received from the Bar in Nicholson. developing their careers as barristers. Bar Council Chair Fiona McLeod SC Following the formalities, the Jindi Worobak welcomed a large crowd of Victorian Bar Dance Troupe performed an interpretation members and members and supporters of of the Creation of Wurundjeri. the Indigenous legal community, saying:

54 VBN VBN 55 news and views

Are the drastic consequences of falling foul of the anti-doping regime, so Sport, Drugs and Doping Control dramatically demonstrated in the cases mentioned above, confined to elite athletes news and views news competing at the highest level in their sports? The answer is, of course, “no”. Ben Ihle and Elizabeth Brimer

rugs in sport is a hot topic. The public debate No matter how wide the appreciation of sport; no and substances not approved for Sports Anti-Doping Regulations 2006 few extra pounds. He did a search rages and intrigue abounds in relation to matter how broadly spread the distress caused by a human therapeutic use. It also permits the Australian Sports Anti- online for fat-burning tablets, D performance enhancing substances: who knew, revelation of cheating in sport, one inalienable fact prohibits the use or attempted use of Doping Authority (ASADA) to test found a website with a special and who ought to have known and what can be done about remains; the foundation of sporting regulation is a prohibited substance, possession or certain classes of athletes including, placed an order. He did no research it? The Australian Crime Commission’s report Organised contractual. Competitors, support staff and others agree, trafficking and provides for a number those tested by agreement with a on the tablets, nor the website he Crime and Drugs in Sport (February 2013) revealed either expressly or impliedly, to be bound by the rules of other anti-doping rule violations. sporting body. If a person who signed was ordering from. He had no idea connections between our sports stars and organised of the game. Are the drastic consequences of falling foul Take, for example, a person signing the VAL registration form competed what the substance contained, but crime leading some to decry that presently we are of the anti-doping regime, so dramatically demonstrated up to become a member of the in an event, was tested by ASADA and thought that he would check with the enduring the blackest days in Australian Sport. Given in the cases mentioned above, confined to elite athletes Victorian Athletic League (‘VAL’). a prohibited substance found in that club doctor when it arrived before that sport, in one form or another, is a national past-time, competing at the highest level in their sports? When signing the registration form, person’s sample, their name would taking it. He never received what one can only speculate as to the effect of such a comment The answer is, of course, “no”. Chances are that if whether in the youth category (under likely be entered on the Register of he ordered. It was intercepted by on our faith in sports stars, and national morale as you, or someone you know has ever been involved in 21), standard registration, or over Findings, a register which records Australian Customs, who informed a whole. competing in sport at any reasonable level, they will 25 years, the applicant declares: the names of athletes who have ASADA and he was charged with Recent, and less recent, history has demonstrated have been contractually bound by the World Anti-Doping committed anti-doping rule violations possessing a prohibited substance. I acknowledge that upon registering that sporting heroes can and will fall in the most Code (the Code). There could be a simple ‘one-liner’ on a under the NAD Scheme. ASADA Under the AFL Anti-Doping with the Victorian Athletic League spectacular fashion when they are revealed as doping registration form for entry into a particular competition must give notice of the entry on the Code (used by the VFL and which and upon entering any competition cheats. Ben Johnson’s disqualification in Seoul, Lance which, when signed, binds that person to the sport’s Register to relevant sporting bodies. relevantly replicates the WADA conducted under its auspices, I am Armstrong’s seven stripped Tours de France jerseys code of conduct. This in turn may pick up the sport’s Consider the following possible Code) “possession” has the extended subject to, and shall abide by, the Rules and the BALCO affair, which saw more than one anti-doping policy, the national body’s rules, or may consequences. Assume that person definition, which provides, amongst and Regulations and Code of Conduct Olympic medallist behind bars, are infamous examples. simply, by reference, incorporate the Code and the World who signed the VAL registration other things, “the purchase (including for Athletes of the Victorian Athletic At home there are recent scandals and investigations Anti-Doping Agency’s prohibited list of substances (the form is a full time sports teacher by any electronic or other means) of League. I shall also abide by the drug concerning high profile AFL and Rugby League teams, Prohibited List), which is amended from time to time. in a school and participated in that a prohibited substance … constitutes regulations of the IAAF and Athletics which investigations are ongoing. So, what is the Code? The Code is a document that competition as a personal challenge. possession by the person who Australia... The ideals of fairness of the fight, true merits based harmonises anti-doping regulations in sport across the Their employment may well be at makes the purchase.” Accordingly, outcomes and an equal playing field are the foundations world. What does it prohibit? The Code prohibits the The drug regulations of the IAAF risk given a finding of presence of a he had committed the anti-doping of the fairy tale appeal that sport has, time and again, presence, in an athlete’s sample, of certain substances mirror provisions contained in prohibited substance. rule violation of possession of delivered to its adoring public. Deliberate cheating and their metabolites, substances with similar chemical the Code. The intent of the Code is the a prohibited substance and was undermines these foundations. structure or biological effect to those named substances Did that person, who signed the protection of the integrity of sport sanctioned by the imposition of a VAL registration form realise that and its foundations. The Code makes period of ineligibility. In this athlete’s anti-doping rule violations do not it clear that responsibility for what circumstances, the imposition of require any mental element to be is in an athlete’s system is solely the ban from competing effectively established before they can be the responsibility of the athlete. meant that he lost two seasons excluded from competition for a However, there are cases where, playing with his club. It also resulted period of two years for a first offence, some may think, the ‘time’ bears in the already narrow window of or life for a second? Did that person little resemblance to the ‘crime’, and possibility that he would be drafted realise they can possess a prohibited where the application of the strict by an AFL club being well and truly substance without ever having and extended terms of the Code, with closed to him. received it? Did they realise that the respect to well-intended athletes, The Code is robust, if not onus is on them to prove no fault or challenges common sense and draconian. Its drafters propound negligence, or no significant fault notions of fairness. that such vigilance is the only way to or negligence to reduce a period of Take, for example, the recent case ensure that sport remains fair and

illustration by guy shield ineligibility? And even then, such of a player in the Victorian Football drug free. Their perspective has much reduction will only come about League, who, via his iPhone, placed to commend it. Vigilance is, however, in cases considered to be “truly an order on a website. In the off- required of all participants in sport exceptional”. season the player enjoyed the good who sign a form, as the anti-doping Further, clause 1.06 of the National life and feared reprisals in the regime is not limited in application Anti-Doping scheme (NAD Scheme), preseason should he return to the to those famous names at elite level which is contained in the Australian club and appear to be carrying a such as Johnson and Armstrong.

56 VBN VBN 57 news and views

participation in BAI or their activities or events (see Member Protection Bylaw, Boxing Australia Inc Code article 3) such as the Australian championship. of Conduct, and the Athlete SWOT Analysis. I didn’t get drug tested that year. The ‘elite female’ I read the documents listed above for the first time news and views news who beat me in the semi-final did though, and as today. And for those of you who are wondering, a it happens her sample came back with a positive SWOT analysis is not some forensic procedure but a finding. According to a teammate of hers (hearsay, written listing of your strengths and weaknesses, and I know), she sipped from a polystyrene foam cup the opportunities and threats you face. I also found containing a water like substance given to her by that out today. her coach during her warm up. She didn’t ask to To be entirely honest, it was only once I represented check the ingredient list. From what I hear, she someone who had been charged with breaching didn’t even ask her coach what the drink was his sport’s drug policy that I actually started to – she allegedly just thought it was some sort of understand the scope of drug policies and the serious Gatorade style drink. It wasn’t. and strict liability consequences that result from The drink contained a stimulant. The boxer was violations. It was only then that it first occurred to later suspended, and stripped of her win. No one me that I should have read the ingredients list of the ever told me though. I only stumbled across a ‘news protein powder I picked up at Rebel Sports. But by alert’ months later whilst wading through the ASADA this stage I also realised that even if I made every website researching for an unrelated legal matter. Nor reasonable enquiry, the product could still possibly did BAItell me about the 51kg elite female champion (albeit not probably) contain something prohibited and Olympic Games hopeful who also tested positive which could see me eliminated from competing in the from a sample taken at those same Titles. As it turns sport I love for a matter of years. So now I don’t use a out, the fluid retention tablet the boxer had taken protein powder. Just safer that way I suppose… before boarding the plane to Tasmania contained a prohibited substance. She was also stripped of It was only once I represented her title, suspended for a period of two years, and missed the opportunity to represent Australia in the someone who had been charged Olympics. Perhaps BAIor someone should have told with breaching his sport’s drug us. Then maybe we might have understood the drug policy that I actually started to policy better, we might even have read it. Time went by and I was asked to compete for understand the scope of drug policies Boxing with Australia. Before heading overseas, the team was and the serious and strict liability made to watch (endure as most of the team saw it) a 20 minute ASADA educational video, followed by consequences that result from a five minute question and answer session. To be violations. It was only then that it honest, I don’t recall what was in the video. I certainly first occurred to me that I should Policy Shadows don’t remember the video telling me that I could be suspended from competing for two years for simply have read the ingredients list of Simone Bailey ordering a product which contained a prohibited the protein powder I picked up substance even if I hadn’t consumed it, nor do I at Rebel Sports. remember the video telling me that even if I had was first introduced to ASADA (and I mean steroids, illegal drugs, and the like. The quiz was multiple made all possible enquiries, and had written evidence ASADA and not the Boxing Australia Inc choice and the answers seemed absolutely clear – just from the supplier of the product that it contained no Of course, as a legal practitioner, I should have Anti-Doping Policy) at my first Australian as we expected – any dummy would know the answers. prohibited substance, that I could still be suspended known better – I should have read the policy. Titles in February 2012, more than six When we abandoned the quiz over an hour later I was for two years if by some chance the product still I should have read the rules, by which I was bound. years after I had started competing in the absolutely dumbfounded to learn that we had failed secretly contained a prohibited substance. But I didn’t. Even if I had, without researching the sport. In the days leading up to the start of miserably (which at the time we thought was hysterical). I signed a form saying that I had watched the not readily available case law from disciplinary the competition, the Victorian team was told that each We didn’t get round to completing the quiz. It didn’t seem ASADA video, but I don’t actually remember signing tribunals, I still don’t think I would have understood participantI in the Australian Titles had to complete an to matter. Not to us anyway. any other forms before I left Australia wearing the far-reaching scope of the policy. That of course online drug quiz before they were eligible to compete. I honestly don’t recall signing anything attesting to the the Australian team tracksuit for the first time. begs the question— where does that leave the I reiterate we were told this when we were already in fact that we had completed the online quiz (which I don’t However my research for this article has shown me non-lawyer athletes? Tasmania, 1-2 days before we stepped in the ring, and think any of us had), nor do I remember signing anything that, as it turns out, I did. Apparently I let’s just say our accommodation wasn’t such that you’d agreeing to be bound by the BAI Anti-Doping Policy (the acknowledged that I had read, understood expect to find a computer for guests’ use. Luckily I had Policy). That’s not to say I didn’t. In any event a search imone Bailey, is a barrister and boxer. She is currently ranked 2nd in and executed (where necessary) the my laptop. I recall myself and my two room/teammates of the Policy shows that it applies to each participant in Australia for 57kg elite female category, a four time State Champion following documents: the AIBA Technical S sitting down to complete what we considered would be the activities of Boxing Australia Inc (BAI) by virtue of and representative for Australia in international competitions. & Competition Rules, the AIBA Anti- a quick pointless quiz – we already knew not to take the participant’s membership, accreditation or even its doping Rules, Boxing Australia Inc

58 VBN VBN 59 Ethics Committee The Collingwood Cup BULLETINS news and views news Sharon Moore Ethics Committee Bulletin No 2 of 2012 requests for dispensation from the operation of rules ony Lewis has jurors to exercise care with the QC, and juniors Mark Weinberg 1. It has become apparent to the members of the Ethics is not bound to observe a certain rule or rules or may barracked for questions of fact because, as he (as he then was) and Robert Richter. Committee that many applications to the Committee do so in a modified form. Relief from the prohibition the Richmond explained, Judge Ogden had shown While they were successful in the for dispensation from the operation of certain practice imposed by rule 171 or any rule cannot be granted Football Club a strong disposition to favour the High Court – the success did not rules pursuant to Rule 7, and most frequently from absent special circumstances. since he was prosecution. Tony’s words were come cheaply. Tony recalls that in Rule 171, fail to provide adequate detail of the special 4. In making an application for dispensation from Rule four years old. caught by the transcript, that “you 1984 Brian Shaw’s fees were $7000 circumstances or justification for dispensation being 171, counsel must also give consideration to Rule 120 He was assigned the team by his would be pretty annoyed if, in the and that “you could buy a respectable granted. which prohibits barristers acting as or performing the Ttwo sisters – at a time when they middle of a grand final, one of the sports car in those days for that 2. Rule 171 states: work of a solicitor; Rule 126 which requires barristers were well and truly welded to the umpires suddenly started coming out amount”. It was, in fact, the Victorian 171 A barrister must not, except with the written to be briefed by solicitors and the exceptions to Rule bottom of the ladder! But it was a in a Collingwood jumper and started Bar who paid for Counsels’ fees – the permission of the Ethics Committee, accept any 126 in rule 127. ‘Collingwood Cup’ that Tony recently giving decisions one way.” outcome of the case being considered instructions or brief in a direct access matter: 5. Frequently the only reason proffered by counsel for presented to the Victorian Bar. Judge Ogden (who it transpired of significance to all members. (a) to appear in the , seeking dispensation is the assertion that the client The sterling silver cup’s story was a Collingwood supporter!) Tony, who last year retired after Federal Court of Australia, Family Court of cannot afford to engage a solicitor. The Committee’s began in 1808 when it was made by charged Tony with contempt of more than 40 years at the Bar, Australia, Supreme Court of Victoria, County view is that this does not constitute a special Charles Hollinshed of London. In court for wilfully insulting a judge, recently presented the cup to the Court of Victoria (except in criminal matters circumstance as contemplated by Rule 7. 1984 it was purchased by Melbourne convicted him and fined him $500. Bar to show his appreciation for where the barrister is instructed by Victoria 6. “Special circumstances” must be just that, “special”. solicitors Les Webb and Phil Slade In proceedings for relief in the the “vigorous support” he received. Legal Aid), or in any civil proceeding in the They must be exceptional in quality or degree, unusual and presented to Tony, who was Supreme Court of Victoria, Justice He said that he was very humbled Magistrates’ Courts of Victoria or the Federal and out of the ordinary. their client, to commemorate his King quashed the fine on the ground by the support the Bar provided to Magistrates Court; 7. In particular, lack of financial resources is not unusual. victory in the High Court in Lewis v that Judge Ogden had failed to him and particularly appreciated (b) once proceedings are instituted (if acting for a Neither is the failure to seek representation until the Ogden [1984] 153 CLR 682. The cup provide an adequate opportunity the Bar Council’s financial support. plaintiff) and served (if acting for a defendant) eleventh hour. Nor is it a special circumstance that the was purchased from left over funds to Tony to adduce evidence or Tony Lewis (right) presents the Collingwood Cup to the in any of the courts set out in sub-paragraph client loses faith in the solicitor and only wants to deal received through a costs order paid advance argument on the issue of Bar’s representative, Ross Nankivell (a) hereof. with counsel. Ordinarily, an established relationship by the Crown. How Tony came to penalty. Tony and his legal team 3. Rule 7 of the Victorian Bar Rules of Conduct provides between counsel and client would not constitute the be a client, in the High Court and sought special leave to appeal to that in special circumstances the Bar Council or the requisite special circumstances. the recipient of a costs order from the High Court in relation to the Ethics Committee may grant a dispensation from the Richard W McGarvie SC the Crown is explained below. conviction. Tony was operation of certain rules by declaring that a barrister Chairman, Ethics Committee In the course of presenting his represented in the closing address to the jury in a High Court by no criminal trial before Judge Ogden, less than the late, Ethics Committee Bulletin No 3 of 2012 Tony made remarks concerning the great, Brian Shaw acceptance of two briefs to appear on the same day role of a judge in a criminal trial and, in particular, drew a distinction in the supreme court of victoria between the judge’s comments on Counsel are reminded that they “ought not to accept more Honour accordingly had to be adjourned to a new date, questions of law and than one brief to appear on a particular day, unless: giving rise to obvious potential costs consequences for questions of fact. (a) the barrister can properly advance and protect the the parties and the absent barrister. The judge advises Tony invited the client’s interests to the best of the barrister’s skill and that there is a view among judges of the Supreme Court diligence in each matter; and that such instances are becoming more common. With (b) the barrister will not cause any embarrassment or the recognised exception of Commercial List directions delay to the court or to the barrister’s opponent.” days on which the Court has long accommodated counsel

THE COLLINGWOOD CUP photos courtesy of tira lewis See Good Conduct Guide [5.21] at page 77. who have more than one brief, or where the Court’s THIS CUP WAS PRESENTED THE APPEAL WAS WON WITH A Supreme Court judge has drawn to the attention indulgence is granted to accommodate unexpected TO TONY LEWIS BY LES WEBB THE HELP OF BRIAN SHAW Q.C., of the Ethics Committee a recent instance of great contingencies, such as serious illness or funerals, counsel AND PHIL SLADE TO MARK WEINBERG and ROBERT discourtesy to the Court and opponent where a barrister must ensure they are available to appear at the earliest COMMEMORATE HIS VICTORY RICHTER OF COUNSEL, who had been double briefed became unavailable to time that is convenient to the Court to proceed with the IN LEWIS V OGDEN IN THE SLADE and WEBB SOLICITORS, appear before his Honour at all on a particular day, matter. The same considerations apply in all courts, not HIGH COURT OF AUSTRALIA AND WAS SUPPORTED BY after first having had his opponent stand the matter just the Supreme Court. ON THE 15TH OF MAY 1984. THE VICTORIAN BAR. [1984] 153 CLR 682 down to 2.15pm, because the counsel concerned was Richard W McGarvie SC required to appear elsewhere. The matter before his Chairman, Ethics Committee

60 VBN VBN 61 the Scheme provided that the matter satisfies the criteria capacity in a matter in the Practice Court of the Supreme Ethics Committee Bulletin No 4 of 2012 of the Scheme. Those criteria include a provision that Court of Victoria, in mediations led by an Associate Judge direct access briefs – updated the matter must be that in which, in the Duty Barrister’s or other Officer of the Supreme Court, and in the Court of opinion, the client will not be prejudiced if a solicitor is Appeal, under the auspices of the Scheme provided that This Bulletin supersedes Bulletin No. 2 of 2011. VICTORIAN BAR PRO BONO SCHEME not acting. the matter satisfies the criteria of the Scheme. The Ethics Committee reminds barristers of the Rules 7. The Ethics Committee has granted dispensation from 10. In 2008, the Duty Barristers’ Scheme was extended Both these dispensations are reviewed on a regular basis. of Conduct relating to direct access briefs. the operation of rules 171, 172, 174 and 176 of the to the Supreme Court under strict criteria. The Ethics Again, the Rules of Practice of the Victorian Bar RULES OF CONDUCT Practice Rules in order that a barrister may advise and Committee has granted dispensation from the operation apply to these “Duty Barrister” schemes. Thus, it is the appear in a professional capacity under the auspices of rules 171, 172, 174 and 176 of the Practice Rules obligation of the barrister to make an assessment of what 1. The Direct Access Rules are found at Part VI of the of the Victorian Bar Pro Bono Scheme (VBPBS), which to those members of counsel who, from time to time, is in the interests of the client under Rule 168 as well as Rules of Conduct – Rules 165 to 177. is administered by the Public Interest Law Clearing are participating in the Scheme as extended with the comply with the other Direct Access Rules. 2. Subject to the Rules of Conduct, Rule 165 permits House (PILCH), provided that the matter satisfies the approval of Bar Council to the Supreme Court, in order Richard W McGarvie SC a barrister to accept instructions or a brief (without criteria of VBPBS. that they may advise and appear in a professional Chairman, Ethics Committee the intervention of a solicitor) from: This dispensation is reviewed on a regular basis. (a) a member of an approved body acting on its own The Rules of Practice of the Victorian Bar apply to or on behalf of a client; VBPBS. Thus, it is the obligation of the barrister to Ethics Committee Bulletin No 1 of 2013 (b) a lay client in a matter in which the client is make an assessment of what is in the interests of the changes to victoria legal aid funding, february 2013 directly concerned; or client under Rule 168 as well as comply with the other 1. Effective from 7 January 2013, changes to Victoria (ii) ensuring that the client adequately (c) the Victoria Legal Aid in criminal matters. Direct Access Rules. Legal Aid’s Criminal Law Guidelines now cap understands the barrister’s advice; 3. The application of Rule 165 is limited by the Rules, in instructing solicitors’ fees in indictable crime trials to (iii) avoiding any delay in the conduct of any particular, Rule 171 which prohibits a barrister from FEDERAL COURT AND THE FEDERAL two half days with a small number of exceptions. hearing or compromise negotiations; and accepting any instructions or a brief in a direct access 2. At the beginning of 2013 the Supreme Court of Victoria (iv) protecting the client or the barrister from matter (except with the written permission of the MAGISTRATES COURT stayed two criminal proceedings on the grounds any disadvantage or inconvenience which Ethics Committee): 8. The Federal Court and the Federal Magistrates Court that the accused might not obtain a fair trial as a may, as a real possibility, otherwise be (a) to appear in the High Court of Australia, Federal in conjunction with the Victorian Bar also conduct pro consequence of the limited assistance of an instructing caused,has been refused. Court of Australia, Industrial Relations Court of bono assistance schemes. The Rules for these schemes solicitor to counsel. (c) In considering his or her position in relation to Australia, Family Court of Australia, Supreme are contained in Division 4.2 of the Federal Court Rules 3. The Ethics Committee has received a number of Rules 96(e) and 98(a) counsel should have regard Court of Victoria, County Court of Victoria 2011 and Part 12 of the Federal Magistrates Court Rules. enquiries as to the effect of these decisions. In to Rule 101 [return of briefs in serious criminal (except in criminal matters where the barrister The Ethics Committee has granted dispensation from response the Ethics Committee reminds Counsel that: cases] and Rule 105. In particular, counsel should is instructed by Victoria Legal Aid), or in any civil Rule 171 of the Practice Rules to Counsel accepting a (a) The need for an application for a stay of a criminal have regard to the requirement that a barrister proceeding in the Magistrates’ Courts of Victoria; pro-bono referral under Division 4.2 of the Federal Court proceeding is a legal issue and not an ethical issue, who wishes to return a brief must do so in (b) once proceedings are instituted (if acting for Rules 2011 (previously Order 80 of the Federal Court and is a matter for the forensic judgment of counsel enough time to give another legal practitioner a plaintiff) and served (if acting for a defendant) Rules) and Part 12 of the Federal Magistrates Court and instructions from the client. a proper opportunity to take over the case. in any of the courts set out in sub-paragraph Rules. This dispensation is reviewed on a regular basis. (b) Rules 96(e) and 98(a)(i) entitle counsel to refuse 4. Counsel should also have regard to any legislative (a) hereof. The Rules of Practice of the Victorian Bar apply to to accept or retain a brief and to return a brief requirement for leave of the court to withdraw. 4. Rule 170 allows a barrister to appear in a direct these pro-bono schemes. Thus, it is the obligation of in circumstances where the barrister’s request 5. The application of these Rules will depend on the access matter in the Magistrates’ Court in a criminal the barrister to make an assessment of what is in the that appropriate attendances by an instructing circumstances of each case. Members of the Ethics proceeding. interests of the client under Rule 168 as well as comply solicitor will be arranged for the purposes of: Committee are available to respond to specific queries 5. The effect of the Direct Access Rules is to permit with the other Direct Access Rules. If the barrister (i) ensuring that the barrister is provided with from counsel. barristers to appear in the Magistrates’ Court in a considers that it is in the interests of the client that a adequate instructions to permit the barrister Richard W McGarvie SC criminal proceeding and at Tribunals (including VCAT) solicitor be instructed in the matter, the relevant court to properly carry out the work periods Chairman, Ethics Committee without the intervention of a solicitor. This permission official must be notified and the court will inform required by the brief; is, however, subject to Rule 168 which provides that: the client to contact the Public Interest Law Clearing A barrister: House (PILCH) for pro bono assistance. If the client (a) must not accept any brief or instructions in a meets the guidelines and is eligible for assistance, Ethics Committee Bulletin No 2 of 2013 direct access matter if he or she considers it is PILCH will attempt to refer the matter on a pro bono communications between counsel in the interests of the client that a solicitor be basis to a solicitor. instructed. 1. Counsel should be mindful in their dealings with 3. In dealing with opposing counsel, counsel should at all (b) must decline to act in a direct access matter DUTY BARRISTERS’ SCHEMES opposing counsel. times conduct themselves appropriately for in which at any stage he or she considers it 9. In 2007 the Victorian Bar established a Duty Barristers’ 2. The Ethics Committee understands the need for direct a professional exchange. in the interests of the client that a solicitor be Scheme (the “Scheme”) in the Magistrates’ Court. and frank exchanges with opposing counsel. However, 4. Counsel should refrain from using offensive language instructed. The Ethics Committee has granted dispensation recently the Ethics Committee has had drawn to its which may, depending on the circumstances, constitute 6. Furthermore, Rules 173 to 177 place a number from the operation of rules 171, 172, 174 and 176 of attention examples of counsel adopting behaviour unethical conduct. Further, the use of such language of procedural restrictions and record-keeping the Practice Rules in order that they may advise and which is inappropriate for a professional exchange in some contexts may be considered to constitute requirements on barristers when acting in a direct appear in a professional capacity in a civil matter in with opposing counsel. threatening or bullying behaviour. access matter. the Magistrates’ Court of Victoria under the auspices of Helen Symon SC Chair, Ethics Committee

62 VBN VBN 63 back of the lift

of the LiftBack of the Adjourned Sine Die LiftBack With the retirement of Justice , the High Court of Australia High Court of Australia The Hon Justice Heydon AC Michael Gronow has lost one of its most erudite members, and one of those rare judges whose judgments are a genuine pleasure to read. Supreme Court of Victoria, Adjourned Sine Die Court of Appeal The Hon Justice Bongiorno AO QC The Charter may reflect much of author of the fourth edition of Australia on 11 February 2003. Michael Wheelahan SC what is best and most enlightened in Meagher, Gummow & Lehane’s Equity: He is married and has four children. Supreme Court of Victoria the human spirit. But there are some Doctrines and Remedies, and the His Honour’s judicial style has The Hon Justice Habersberger Anthony Neal SC virtues that cannot be claimed for it. 7th edition of Jacobs’ Law of Trusts remained pithy and direct. He Silence All Stand One is originality. For a great many in Australia. recently said the following of parties His Honour was born in Ottawa, who had opposed a costs order in High Court of Australia of the rights it describes already exist Canada on 1 March 1943, the son favour of a successful appellant: The Hon Justice Keane Michael Colbran QC at common law or under statute. In of the Australian diplomat, public that form, the rights are worked out The respondents’ position is typical of Federal Court of Australia servant and author Sir Peter Heydon. in a detailed, coherent and mutually the mindless and rancorous technicality The Hon Chief Justice Allsop AO Robert Heath He was educated at Sydney Church consistent way. Thus the very general which characterises litigation about of England Grammar School and the Family Court of Australia rights to liberty and security in s21 may industrial law. It is entirely without Universities of Sydney and Oxford, The Hon Justice Walters Keith Nicholson be compared with the incomparably merit. That is particularly so in view more specific and detailed rules of which latter university he attended as The Hon Justice Tree VBN of the extraordinary weakness of the criminal procedure which exist under a Rhodes Scholar. He achieved First The Hon Justice Coate Fiona Ellis respondents’ substantive case on the Class Honours and the University the general law. Those rules are tough appeal. (Board of Bendigo Regional Supreme Court of Victoria, Medal in History at Sydney, and the law. Infringement can lead to criminal Institute of TAFE v Barclay (No 2) Court of Appeal Vinerian Scholarship at Oxford. He punishment, damages in tort and (2012) 86 ALJR 1253, at [9]). The Hon Justice Whelan Adrian Ryan SC evidentiary inadmissibility. They were became a Fellow of Keble College The Hon Justice Priest Sara Hinchey worked out over a very long time by Oxford in 1967, Professor of Law Those of us who enjoy legally The Hon Justice Coghlan VBN judges and legislators who thought at Sydney in 1973, and Dean of stimulating and well written Law there in 1978. His Honour judgments will regret his Honour’s Supreme Court of Victoria deeply about the colliding interests and commenced full time practice at departure from the High Court. The The Hon Justice Digby Anthony Strahan values involved in the light of practical

illustration the New South Wales Bar in 1979, Victorian Bar wishes him well in his The Hon Associate Justice Derham David Bailey experience... Another virtue which the Charter specialising in trade practices, retirement from judicial activity. County Court of Victoria lacks is adherence to key values equity and commercial law. He was (the author gratefully acknowledges His Honour Judge Gray Timothy Bourke associated with the rule of law – and a member of the NSW Bar Council the note by IM Jackson SC (2003) 77 His Honour Judge Jordan Tim Seccull from 1982 to 1986 and took Silk in ALJ 697 for providing some of the

by the protection of human rights is

1987. He was appointed a judge of biographical details referred to above) Magistrates’ Court of Victoria sam commonly, though not universally, the NSW Court of Appeal in February MICHAEL GRONOW Chief Magistrate Lauritsen Timothy Bourke thought to be closely connected to the

sta (With FIONa mcleod sc and pat casey) rule of law. One value associated with 2000, and of the High Court of F

ford the rule of law from which the Charter Obituaries departs is certainty, particularly in Professor Emeritus Harold Ford AM Supreme Court of Victoria, Court of Appeal s7(2). Application of the Charter The Hon Justice Dodds-Streeton is very unlikely to make legislation Evan James Smith VBN more certain than it would have been The Hon Justice Bongiorno AO QC Gerald Andrew Hardy VBN High Court of Australia without it. A further value associated Bar Roll No 850 Graeme Hilaire Cantwell Max Perry with the rule of law from which the Graeme Douglas Johnstone The Hon Justice Heydon AC Charter departs is non-retrospectivity. n 31 December 2012 the Hon and then served articles with William His Honour Magistrate Alsop Justice Bongiorno retired from Hunt. His Honour was called to ith the retirement of Justice Dyson Heydon, (Momcilovic v R (2011) 245 CLR 1, John Aubrey Gibson Guy Gilbert the Supreme Court of Victoria the Bar in 1968 and read with Tom the High Court of Australia has lost one of at [380]-[382]) John Raymond Perry Max Perry O and as a judge of the Court of Appeal. Neesham (later his Honour Judge its most erudite members, and one of those Richard Taranto Her Honour Magistrate Fleming His Honour is a distinguished and His Honour served with distinction Neesham). His Honour took silk rare judges whose judgments are a genuine Lindis Krejus VBN prolific legal author. His works as a judge of the Court for more than in 1985. pleasure to read. His Honour’s former career include The Restraint of Trade 12 years, including for more than At the Bar, Justice Bongiorno had *Entries for Back of the Lift are current as an academic and Dean of Law, as well as Doctrine (now in its third edition), three years as a judge of the Court a wide-ranging practice. His Honour up to 22 March 2013 his literary, classical and historical learning, inform his judgments Trade Practices Law and several of Appeal. was one of the last great generalists, Wand his prose style, whether in majority or in dissent. Like some Australian editions of Cross on Justice Bongiorno graduated from and his considerable natural talent of his predecessors on the High Court, his Honour has a profound Evidence. His Honour is also an the in 1966, enabled him to cross jurisdictions admiration for the common law:

64 VBN VBN 65 back of the lift

with ease. As junior counsel, his often just as taxing with many very Honour acted as counsel assisting complex commercial disputes finding in the Victorian Poker Machines their way to his Honour. The various back of the lift back Inquiry conducted by Murray Wilcox hearings in the BHP Billiton v Steuler QC. As a silk, his Honour conducted dispute spanned four and a half cases in all courts ranging from years. Despite the rigours of the cases complex professional negligence before him, His Honour enjoyed cases, to defamation, crime and a well-deserved reputation for commercial law. courtesy and patience. His Honour’s From 1991 to 1994 his Honour judgments bear the trademarks of was Director of Public Prosecutions. his Honour’s practice of the law As Director, his Honour championed generally: informed by diligence the independence of that office, and and driven by reason. discharged his duties with distinction. His Honour readily acknowledges His Honour appeared in a number of the enormous support and appeals by the Director to the High encouragement of his family Court, including R v Glennon (1992) throughout his professional career. 173 CLR 592, in which the Director Some 44 years of what his Honour

was successful by a 4:3 majority in stafford himself described as “marital

submitting that a stay of criminal serendipity” with his wife Pam has sam proceedings on the ground of pre- obviously been a wonderful and by trial publicity should be overturned. sustaining union, one blessed by Upon his return to the Bar in their son James and enriched in 1994 his Honour again enjoyed a more recent times by the arrival most successful practice, in trial and of two grandchildren.

appellate work. His Honour appeared illustration It should not be thought that in leading common law cases in the his Honour is without vices or illustration High Court, including Pyrenees Shire Supreme Court of Victoria deficiencies. He is known to be a Council v Day (1998) 192 CLR 330. supporter of the St Kilda football His Honour was a great contributor club, which arguably qualifies on to life at the Bar. He had six readers. The Hon Justice Habersberger both counts. Reputedly he also

He served on the Bar Council for by introduced both wine and women

Bar Roll No 1033 seven years, on the Bar Ethics sam to Queen’s College (I hasten to add, Committee for five years (including ustice David Habersberger high component of “mega-litigation”. in his capacity as President of the

sta as Chairman), as a Bar representative retired as a judge of the The protracted St Andrews Hospital College’s General Committee). Whilst F on the Supreme Court Board of ford J Supreme Court of Victoria and HFC Financial Services matters his Honour and Pam greatly enjoy Examiners for 10 years, and on on 20 March 2013 having been were a mere dress rehearsal for walking holidays in foreign climes, numerous other Bar and Bar/Law appointed to the bench in July 2001. his Honour’s real magnum opus: his mastery of foreign languages Institute Committees. He was a over eight months in 2008. On 11 tribute to his Honour’s outstanding His Honour signed the Roll of conducting the Inquiry into the is still developing. His amiable and champion of legal aid and access August 2009 Justice Bongiorno was service on the Court, on the Court Counsel in 1973 having completed collapse of the Pyramid Building patient disposition was tested when to justice. appointed to the Court of Appeal, of Appeal, and in the law. a first class honours degree in law. Society. After an Inquiry lasting an Italian train carriage continued Justice Bongiorno was appointed where his Honour sat until his Outside the law, his Honour Before that he served articles of over four years his Honour produced to spew out warm air despite his to the Trial Division of the Supreme retirement. served on the Committee of Co.As.It clerkship with Blake Riggal and was a 1700 page report. The report was of purposefully sliding the vent to Court on 18 December 2000. For Justice Bongiorno’s last sitting was (the Italian Assistance Association) an Associate to Sir Garfield Barwick. meticulous quality, notwithstanding “caldo”. Apparently he was also many years his Honour was the on Friday 21 December 2012. On that for more than 30 years, including His Honour read with the Hon that the final year of the Inquiry impressed by the ubiquitous chain of Judge-in-Charge of the Major occasion Chief Justice Warren, paid 13 years as President. He was made Stephen Charles QC. He quickly was unfunded – a remarkable act Italian cafes called “Cafe Freddo”. Torts List, in which his Honour a Commander of the Order of Merit established a successful practice of public service. It is to be hoped a life full of managed common law cases in of the Republic of Italy in 1999 and appeared in a number of High Out of court his Honour was also commitment now segues to a the Court, including defamation His Honour was one of and was awarded the Australian Court cases including Commonwealth a prolific contributor to the Bar. His fulfilling retirement. His Honour’s and professional negligence cases. Centenary Medal. v Tasmania (1983) 158 CLR 1 (the Honour served on the Bar Council humanity and legal ability combined His Honour’s depth of experience the last great generalists, His Honour is a proud father Tasmanian Dam case), a significant and associated committees for to ensure he was a great asset to the equipped him to sit on difficult cases, and his considerable of four children, and a grandfather. constitutional case. 15 years, and was Chairman of the legal profession. The legal profession including the trial of R v Benbrika, natural talent enabled His son Daniel practises at our Bar. His Honour took silk after 14 Bar Council in the appointment year and the Victorian community will be in which 12 accused were tried for The Bar wishes Justice Bongiorno years and his illustrious career as spanning 1994-1995. the poorer for his retirement. The Bar Commonwealth terrorism related him to cross jurisdictions a long and happy retirement. a junior was replicated as silk. His His Honour’s work as a judge wishes his Honour well. offences in a trial that took place with ease. Michael Wheelahan Sc silk’s practice involved an unusually has been no less distinguished and ANTHONY NEAL SC

66 VBN VBN 67 back of the lift

His Honour’s judgments are great as a solicitor in Perth prior to travelling Silence All Stand Federal Court of sources of learning and guidance. to Israel where he lived for nearly 6 Family Court of Australia They reflect patient legal scholarship, years. Whilst in Israel he undertook Australia considerable industry and the compulsory military service and upon principled manner in which his completion studied for, and obtained, The Hon Chief Justice Honour set about resolving disputes. admission as a legal practitioner having The Hon Justice Tree There are many judgments offering successfully completed a Viva, being Allsop AO Bar Roll No 3972 helpful guidance to practitioners now an oral examination in Hebrew. His High Court of Australia n 20 November 2012, the operating against the background of Honour returned from Israel to Perth ustice Peter Tree was Commonwealth Attorney- the Civil Procedure Act 2010 (Vic) and in 1981. appointed a judge of the General announced the like legislation in other jurisdictions. Upon his Honour’s return to Perth J Family Court of Australia The Hon Justice Keane O appointment of the Hon Justice James See for example White v Overland he joined Lavan Solomon, later to with effect from 14 January 2013. n 5 March 2013 Patrick constitutional cases. Soon becoming Allsop as the fourth Chief Justice of [2001] FCA 1333 at [4] and Evans be known as Phillips Fox, working His Honour is based at the Townsville Anthony Keane QC was sworn known as a first-rate traditional the Federal Court of Australia. His Deakin Pty Ltd v Sebel Furniture Ltd alongside the then Family Law partner Registry. O in as the 50th Justice of the legal technician, and an unremitting Honour was the Associate to the first [2003] FCA 171 [676]-[679]. and the now Chief Justice of the Family Justice Tree grew up on a rural High Court. opponent, he was appointed Queens Chief Justice of the Federal Court of In addition to his distinguished Court of Australia, Diana Bryant. His property in Thornlands, outside The speeches at the welcoming Counsel in 1988 and Queensland Australia, the Hon Nigel Bowen. career at the Bar, Chief Justice Allsop Honour was later admitted to the Brisbane. He studied law at ceremony recognised his Honour’s Solicitor-General in 1992. Chief Justice Allsop taught history devoted his time generously to the partnership. the University of Queensland, dominating intellect and unbridled A succession of judicial offices at Sydney Grammar School in 1974 cause of legal education. From 1981, His Honour joined the Western graduating with honours in 1988. capacity for hard work but recognised followed, from his appointment as and he continued working as a he taught parttime at the University Australian Bar in 1985 where he He was admitted as a barrister of also the good humour and humility a Judge of Appeal of the Supreme teacher over the following few years of Sydney as a lecturer in property, initially undertook work in both family the Supreme Court of Queensland that made him a revered member of Court of Queensland in 2005, to at Marist College at Kogarah. His equity, bankruptcy, insolvency, law and criminal law with a particular in 1989. His Honour moved to the Queensland Bar and subsequently appointment as the Chief Justice of Honour began parttime studies in corporate finance and maritime law. interest in prosecutions. He was later Tasmania, where he was admitted as a popular and admired judge. the Federal Court in 2010, and finally, law at the University of New South From 2005 until 2009, he was member to concentrate exclusively in the family a barrister in 1991. There, his Honour Born in 1952 and raised in Wilston, to the High Court. Wales in that period. In 1977, his of the Board of the World Maritime law jurisdiction where he developed a developed a diverse general litigation Brisbane, Keane has spoken of the Justice Keane was hailed by the Honour returned to fulltime study at University in Malmö in Sweden. reputation and a considerable practice practice. In addition to maintaining a sacrifices made by his parents to Queensland Bar’s President as “a the . His Honour The Victorian Bar congratulates his as both a skilled trial advocate and a broad practice in most areas of civil allow him the best opportunities shining light” of the Bar and as a graduated from the University of Honour and wishes him well in his learned appellate advocate, appearing litigation, his Honour also took briefs in early life. great judge who “although always Sydney in 1980 with a Bachelor of new role. in many of the major relocation cases in in family law and crime. Not only did His academic talent and leadership exacting, retained the courtesy, Laws with First Class Honours and Robert Heath the 1980s and 1990s. his Honour take on a wide range of qualities were soon evident as he unpretentiousness, willingness to received the University Medal. This In October 2000 his Honour signed work, his client base was also diverse. became both School Captain and listen and good nature that made background as a history scholar and Family Court of the Victorian Bar Roll as a member of As well as acting for the State and for Dux of St Joseph’s College, Gregory [him] such a popular member of teacher is evident in his Honour’s the Overseas and Interstate Practising large corporations, he acted for many Terrace. [the] Bar”. judgments in the New South Wales Australia Counsel list and in 2001 he relocated to clients on a pro bono basis. His Honour graduated from His Honour’s exceptional career Court of Appeal and the Federal Melbourne joining the list of Practising His Honour took silk on 25 June the University of Queensland in of service, including thoughtful and Court of Australia. The Hon Justice Walters Counsel on 1 July 2001. 2004. While continuing to practise 1976 with degrees in Arts and Law, scholarly contributions to debate Chief Justice Allsop was called to On 29 October 2001 his Honour was in Tasmania, he started to practise with First Class Honours, and the on a wide range of legal issues, was the Bar in July 1981 and took Silk in Bar Roll No 3393 appointed to the Federal Magistrates elsewhere in Australia. His Honour University Medal in Law and other recognised by the University of 1994. His Honour had a distinguished Court where, whilst initially hearing signed the Victorian Bar Roll on n 27 November 2012 his major academic prizes. Queensland with the award of the career at the NSW Bar, practising matters across the full range of the 26 October 2006, and at the time of Honour Justice John Walters After a short time in practice as degree of Honorary Doctor of Laws. mainly in commercial law, including court’s jurisdiction, he sat solely in his appointment was maintaining was appointed as a judge of the a solicitor at Feez Ruthning, his The ceremonial sittings of the insurance and shipping. As a O the court’s family law jurisdiction chambers in Melbourne, Hobart Family Court of Western Australia and Honour spent 10 months at Magdelen Queensland Court of Appeal and the barrister, his Honour was a model of from 2007. Whilst sitting as a Federal and Cairns. on 6 December 2012 he was appointed College, Oxford University on the Federal Court in March 2010 and courtesy and patience. Magistrate his Honour was the Circuit Justice Tree acted in many as a justice of the Family Court of Sir Henry Abel Scholarship. He was in the Federal and High Court in On 21 May 2001, before a packed Federal Magistrate in Shepparton high-profile cases. In 2006, he Australia, replacing Justice Caroline awarded the Vinerian Scholarship March 2013 demonstrated the mutual Court 21A, his Honour was sworn in where the court sat for four single acted for Bob Brown in seeking an Martin following her untimely death for the best-performing student respect and affection between his as a Justice of the Federal Court of weeks each year and he developed a injunction to restrain logging in from cancer. in the examination for the Degree Honour and the judicial colleagues Australia. At this time, his Honour particular fondness for the Goulbourn old growth forest at Wielangta in His Honour was born in Perth in of Bachelor of Civil Law and the and the staff of each Court on which was the first former Federal Court Valley region. Tasmania. In 2009, he successfully 1951. He was educated along with (in prestigious JHC Morris Prize. his Honour has served. Associate to be appointed to the Whilst his Honour came to regard defended the then Tasmanian Police his mother’s words) his “high achieving Returning promptly to Australia His Honour is also well known Federal Court of Australia. His Melbourne as home, in line with his Commissioner who was charged older brother” at Scotch College his Honour was admitted as a as a devotee of many Melbourne Honour was appointed President of interest in relocation matters he has with disclosing official secrets to the and obtained his law degree at the Barrister of the Supreme Court of restaurants and we hope his frequent the New South Wales Court of Appeal now gone full circle, moving back to then Premier. University of Western Australia. Queensland in December 1977 and visits here will continue unabated. in June 2008. In that role, his Honour Perth, where he commenced sitting on His Honour also acted in several Upon completion of his law degree swiftly developed a heavy practice MICHAEL COLBRAN QC served with distinction, politeness 4 February 2013. landmark High Court cases. At he was admitted to practice and worked appearing mainly in commercial and and efficiency. KEITH NICHOLSON just 29 years of age, he was lead

68 VBN VBN 69 back of the lift

counsel for the respondent in Bryan her Honour commenced an Arts fruits. Such pursuit is reflective of her A former wide-eyed reader recalls a Honour has found time over the Honour was notoriously generous v Maloney, successfully contending Degree followed by a Law degree Honour’s professional and personal discussion about jury advocacy and years to teach at the University of with advice, and junior members of that a relationship of proximity at Monash University. In 1984 her character. his Honour’s self effacing analysis Melbourne, stoically to support the the Bar literally queued up to seek back of the lift back existed between the builder of Honour completed articles with Peter FIONA ELLIS of his own first jury trial: his hapless St Kilda Football Club, and to his guidance. His Honour had one a residential premises and a McMullin and by 1988 they became Honour revealed the commission of be an exemplary father to Alexandra, reader – Thamsanqa Nqayi – an subsequent owner. His Honour partners in the firm McMullin, Coate Supreme Court a number of errors which happily Madelaine and Hugh and husband African Human Rights lawyer. also appeared in ABC v O’Neill & Co. As a practitioner, her Honour had no influence on the outcome to Clare. In recent times his Honour Although best known for his and Maurice Blackburn Cashman appeared predominantly in the of Victoria, because he’d been expertly led by has also shown himself to be a true criminal appellate work, his Honour v Brown. Family Court. Court of Appeal John Nixon. “He’s now a County Renaissance Man by taking up the was a formidable jury advocate. As a barrister, his Honour was In 1992, after having worked Court judge isn’t he?” responded study of Italian. He had a reputation for meticulous actively involved in many aspects for Victoria Legal Aid for a year, The Hon Justice Whelan the eager reader. “Yes, and he was The Bar wishes his Honour preparation, unshakeable calm and of the legal profession. From 2007 to her Honour was appointed as a then too”, came the reply. continued success in his focus under fire. His Honour also Bar Roll No 1675 2011, he served as President of the magistrate. After transferring to the As well as having a very busy life distinguished career. appeared in a number of civil claims, Tasmanian Bar. During that time he Children’s Court and serving as a he Hon Justice Simon on the bench and at the Bar, his ADRIAN RYAN SC including cases against the State of was also Director of the Law Council senior magistrate for a number of Whelan was appointed Victoria involving torts by police of Australia. He served as Chair of years her Honour was appointed a T to the Court of Appeal on (Watkins v The State of Victoria & Ors the Tasmanian Sentencing Advisory County Court judge and President 16 October 2012. Prior to that, his Supreme Court of Victoria, Court of Appeal (2010) 27 VR 543; State of Victoria v Council from 2010, and was a of the Children’s Court (2000- Honour served as a judge of the trial McIver (2005) 11 VR 458.) as well as member of the Ethics Advisory Panel 2006). During this time, her Honour division from 17 March 2004. In the The Hon Justice Priest racing matters and matters before the of the Law Society of Tasmania. liaised with the Family Court on the trial division his Honour showed AFL Tribunal. His Honour also lectured at interface between Child Protection great versatility, sitting in both the Bar Roll No 1540 Perhaps the best example of his the University of Tasmania Law and Family Law. civil and criminal jurisdictions. In the Honour’s passion for justice was n 1 November 2012, Justice number of prosecutions, many of School and was the Director of the In 2007 her Honour was former, his Honour sat frequently in when, after watching an expose on Phillip Priest was appointed which were on circuit. He then Professional Legal Training Program appointed State Coroner. In the the Commercial and Equity Division Australian Story, he volunteered to the Court of Appeal. moved into defence work. His (Tasmania) from 1998 to 2002. five years during which she held and had a special interest and O for and took on pro bono, an appeal His Honour signed the Bar Roll Honour was recognised as a skilful VBN this appointment, her Honour expertise in insolvency matters. In in the Supreme Court of Western on 13 March 1980. He practised as a and persuasive advocate, particularly was the guiding force behind the the latter, his Honour presided over Australia in which erroneous barrister for more than 32 years – of in the Court of Appeal where he was Coroners Act 2008; establishing a number of high profile trials that convictions were quashed (Martinez Family Court of those, nearly 14 years as one of Her highly regarded for his meticulous the Coroners Court of Victoria attracted significant public attention & Ors v State of WA (2007) 172 A Majesty’s Counsel. preparation and the breadth and Australia / Royal and the Coronial Council. As State and media interest. Crim R 389). There were other cases Justice Priest was schooled at depth of the experience which he Commission into Coroner, her Honour presided over His Honour was educated at the where his Honour won acquittals, Sacred Heart, Preston, Marist brought to the appellate review. significant inquiries involving the University of Melbourne and came despite his clients’ efforts. Years ago, Institutional Brothers Preston, Parade College in His Honour also made an deaths of teenagers and vulnerable to the Bar in 1981, having completed in a case before his Honour Judge Responses to Child Bundoora and at Geoghegan College extraordinary contribution to the persons who had been either in the his articles and spent a couple of Ogden, his Honour’s client was to in Broadmeadows. After leaving school, Bar. He served 4 years on the Bar Sexual Abuse presence of police or under the care years as a solicitor at Paveys under make an unsworn statement. It was his Honour worked as a teller with the Council and many more years on of the state. Peter Bobeff. In a sign of things to a ’safe-cutting‘ case. When the time National Bank. He commenced long innumerable other Bar committees, In February 2009, Victoria come, his Honour’s early years at the came there was silence from the The Hon Justice Coate articles and qualified for admission to notably the Ethics Committee suffered enormous human loss Bar were spent as an all-rounder. dock. After a considerable pause, his practise after completing the Council (of which was Deputy Chair), the n 11 January 2013, the in the Black Saturday bush fires. He did commercial cases, as well as Honour’s client said: “It was raining” of Legal Education course at the RMIT. Readers’ Course Committee, the Governor-General in Council In the immediate wake of the some crime and common law, and – another pause – “I was bemused”. He later received an LLM from the Law Reform Committee, and the appointed her Honour Judge fires and as embers continued got a healthy education in the “crash Not another word fell from the O University of Melbourne. Chairmen of Lists Committee among Jennifer Ann Coate of the County to burn, her Honour visited the and bash” jurisdiction. As his Honour accused, although his Honour Following his admission, Justice others. Additionally, his Honour was Court of Victoria to be a judge of area and commenced the coronial became more senior he focused is reported to have muttered Priest came straight to the Bar an active member of the Criminal the Family Court of Australia. Her investigation with her trademark on general commercial law, and something to himself. Despite the where he read with Peter Murley. His Bar Association. His Honour brought Honour was sworn in on 31 January empathy and thoroughness. insolvency in particular. In the 1990s client’s best efforts, the man was Honour was in the very first class of compassion, insight, and a passion 2013 and immediately seconded Her Honour’s colleagues, staff and and early 2000s his Honour appeared acquitted. the Bar Readers’ Course in March for justice to each committee on as a Commissioner to the Royal those who have appeared in her court in a number of matters arising out of In his life and practise at the Bar, 1980. His Honour was just reaching which he served. Commission into Institutional know, and have benefitted from, her spectacular corporate catastrophes Justice Priest showed independence, the end of his nine months reading His Honour also mentored and Responses to Child Sexual Abuse. ability to apply her sharp intellect including HIH, Ansett and the courage, tenacity, compassion and period when he appeared in his first supported many junior members of Her Honour was educated at with her strong understanding of Pyramid Building Society. generosity. He personified the reported case: a criminal appeal R v the Bar. His Honour believed strongly Lyndale High School, Dandenong, human nature. Away from court, his Honour collegiality and informal mentoring Bozikis [1981] VR 587, led by one of that a silk should be briefed with and thereafter undertook her Outside of the law, her Honour is is well-known for his sense of that is so important to the Bar. An the leaders of the Criminal Law Bar, a junior and involved his juniors training as a teacher at Frankston a keeper of bees and practises tae humour, both at a professional outstanding barrister and colleague, Bill Lennon QC. closely in his work. But it was not Teachers’ College. After working kwon doe. In a coastal hothouse, her level, on the radio and around the Bar wishes his Honour well In his first 10 years at the Bar, just those juniors working with his as a teacher in 1977 and 1978 at Honour intends to graft and grow a chambers. The good humour was in his new role. Justice Priest did a substantial Honour who received assistance. His the Collingwood Education Centre, tree that bears a variety of different also often on display in chambers. sara HInchey

70 VBN VBN 71 back of the lift

on 2 April 1979. Soon after, his Honour Joe Forrest; Toby Shnookal; David had the remarkable ability to carry Southern Finance Ltd in the Group Supreme Court of Victoria, Court of Appeal commenced reading with John Larkins, McAndrew and Les Schwartz. But it the huge pressures of his practice proceedings in the Supreme Court. later John Larkins QC. On 10 April was not just readers who benefited lightly and always remained good His Honour was also a great servant The Hon Justice Coghlan 1979, his Honour signed the Bar Roll. from an association with his Honour. company, even in the toughest cases. of the Bar. He was a member of the Bar In his early years at the Bar, his The nature of his Honour’s practice Mention should also be made of Council and became Chairman of the Bar Roll No 1366 Honour took what came. Many great meant there was plenty of work for his Honour’s great love of sailing. Bar in 2000. Later, his Honour served battles were fought in the Magistrates’ juniors, and his Honour’s habit was to Reputedly a habit his Honour picked on the board of Barristers’ Chambers ew criminal barristers could Prosecutions for the Commonwealth. and County courts in bucolic (or at work closely with them. Although the up from the late Neil McPhee QC, Limited and was at the time of his aspire to reach the multiple He returned briefly to the Bar before least suburban) locations. But the small hours were relentless – one hoped for his Honour is an avid sailor and has appointment its Chairman. F lofty heights scaled by the being appointed Senior Crown cases did not last long. In the early a break in the email traffic between participated in the Sydney to Hobart As a colleague, his Honour was Victorian Court of Appeal’s newest Prosecutor (major cases) for the 1980s, his Honour was briefed as a 1am and 6am, but his Honour did yacht race and annual Bar sailing held in great affection. Although a addition, Justice Paul Coghlan. On Victorian Office of Public Prosecutions junior in a number of large commercial not always oblige – the support was day, with equal enthusiasm. Most of demanding leader, juniors thought it 11 December 2012, his Honour was on 1 July 1994. His Honour took silk in cases and arbitrations. So began a long unstinting. One of his Honour’s great his Honour’s January is spent on his a privilege to appear with his Honour. appointed a Judge of Appeal of the 1995, the same year he was appointed and mutually rewarding association qualities, well recognised by those yacht, which in typical fashion, his As the longstanding senior member Supreme Court of Victoria, upon Chief Crown Prosecutor. between his Honour, teams of eager who briefed him, was his ability to Honour equips as a sort of floating, of chambers on the fifth floor of Joan the retirement of Justice Bongiorno His Honour became Director of solicitors, fraught clients and a near lead a large team, and get the best out well-catered chambers. Rosanove Chambers, his Honour will AO QC. His Honour had served as a Public Prosecutions in 2001 and served endless supply of lever arch folders. of the people working with him. With his Honour’s appointment, be greatly missed. judge of the court since 7 August 2007 in that role until his appointment to All received the thorough, measured Another of his Honour’s great the Bar loses a great barrister and As is not unknown among barristers, where since 2010 he had held the the Supreme Court bench in 2007. His and careful attention which qualities was generosity. As grateful one of its true leaders and mentors his Honour also enjoyed a good lunch role of principal judge of the Criminal Honour’s time as Director was notable characterised his Honour’s approach. juniors came to know, if one received of recent years. But it recognises that with colleagues, and is well recognised Division of the Supreme Court. for his commitment to meeting and In November 1993, his Honour took an invitation to lunch from his the work ethic and judgment that in at least a couple of legal haunts. His In announcing his appointment, speaking with victims and the families silk. His Honour was well suited to the Honour, it was unwise to plan served his Honour so well at the Bar passion is spaghettini with prawns. Attorney-General Robert Clark said of victims of serious crime, as well as rigors of life as a silk and his practice conferences in the afternoon. Some will also make him a great judge. The Among the lunch circle was the late that his Honour’s “vast practical trial his personal appearances in the Court flourished. He was regularly briefed say his Honour was the natural heir Bar wishes his Honour every success and fondly remembered Associate experience, from both the Bar table of Appeal and the High Court for the in the largest and most demanding to Justice Middleton on this front. in the new role. Justice Ewan Evans, with whom his and the bench, will be of considerable most complex and demanding appeals cases. Complex construction disputes Like Justice Middleton, his Honour ANTHONY STRAHAN Honour once shared chambers. assistance to the Court of Appeal handled by the Office. – occasionally misdescribed as widget His Honour’s name is redolent at a time when the court will be His Honour’s wife Anne Coghlan cases – became a speciality. Arbitration, with the legal history of Melbourne. continuing with the implementation is Deputy President of the Human Supreme Court of Victoria both domestic and international, was a The name Derham is celebrated of the Ashley-Venne criminal appeal Rights Division of the Victorian Civil focus. His Honour was lead counsel in in the former firm of Derham and reforms, as well as overseeing the and Administrative Tribunal and many of the largest arbitrations, both The Hon Associate Justice Derham Derham (which was merged and introduction of impending jury his daughter Georgina Coghlan is a locally and elsewhere and despite this re-merged to eventually become the direction and other reforms.” member of our Bar. His three year Bar Roll No 1532 very demanding practice, his Honour international firm Herbert Smith His Honour graduated with a old granddaughter has already made also taught international arbitration as a ark Derham QC was course and were appointed to the Office Freehills). His Honour’s late father Bachelor of Laws from the University appearances in his Honour’s chambers. postgraduate subject at the University of appointed as an of Parliamentary Counsel. His Honour was Sir David Derham notable lawyer of Melbourne and served his articles VBN Melbourne for many years. Associate Justice of remained in that office for 4½ years and academic, Dean of Monash Law with the firm Maurice Ryan and M In addition, his Honour was a the Supreme Court of Victoria on before enrolling in the Victorian Bar’s School and later Vice-Chancellor of Francis Greene. He was admitted to Supreme Court of huge contributor to the Bar and its 11th December 2012, after a career at first Readers’ Course in March 1980. the University of Melbourne. practice on 1 March 1969 and after governance. His Honour was a member the Bar studded with distinction. At the Bar his Honour’s It is rumoured that as a callow law nearly nine years as a solicitor signed Victoria of the Bar Council from 2005 to 2009 His Honour was educated at Ivanhoe conspicuous talent saw him quickly student, his Honour had a wild side the Bar Roll on 9 February 1978. and served as Chairman between 2008 Grammar School, Scotch College and progress from Magistrates’ Court that was abetted and encouraged His Honour’s practice at the Bar The Hon Justice Digby and 2009. His Honour also sat on the Ormond College, and graduated from and County Court work to the higher by Les Glick (now SC). Regrettably specialised in crime, including the Board of BCL, and was instrumental the University of Melbourne LLB with courts. His Honour developed a history does not record specific prosecution of many significant cases. Bar Roll No 1474 in the work that ultimately led to the honours in 1973. His Honour served reputation for meticulous attention peccadilloes from this era. Whatever During his time at the Bar his Honour n 20 November 2013 G. John purchase of Owen Dixon Chambers articles with Madden Elder Butler to detail and accomplished cross- the true position, in the years since was a generous contributor, serving Digby QC was appointed to West. His Honour also worked tirelessly and Graham and was admitted to examination as well as a dedicated his Honour’s service to his clients and on the Executive Committee of the the Supreme Court of Victoria. for the Commercial Bar Association. He practice on 1 April 1974. From there love of the law. His Honour took silk to the administration of the Bar has Criminal Bar Association, the Bar O He left behind a vast room in Owen was the President of the Commercial his Honour became Associate to Sir on 29 November 1994 and became a been of the highest order. No doubt the Library Committee and the Readers’ Dixon Chambers West, and a larger Bar Association between 2009 and of the High Court leading practitioner in commercial qualities that saw his Honour perform Course Committee. His Honour’s reservoir of goodwill following his 2012, and during his presidency, until the sudden death of Sir Douglas and corporations matters. In recent so admirably as counsel will ensure commitment to Advocacy Training many years of dedicated service to with the assistance of a number of in December 1974. Following that, his years his Honour was senior counsel that his time on the bench is notable involved his regular participation in his clients and the Bar. loyal lieutenants, the prestige and Honour joined the inaugural course for ASIC in leading cases, including for its fairness, justice, accuracy and Advocacy Skills Workshops in Papua His Honour was educated at significance of the Commercial Bar for legislative drafting conducted by the landmark decision in ASIC v erudition. The Bar wishes his Honour New Guinea, Vanuatu and Fiji. Scotch College and the University of Association grew substantially. the Commonwealth drafting office in Healey concerning directors’ duties. every continuing success. In 1990 his Honour succeeded Judge Melbourne. He did articles with McNab His Honour had six readers: Canberra. His Honour and Sue Bromley Until his appointment, his Honour DAVID BAILEY Dee as Associate Director of Public & McNab. He was admitted to practice Silvana Wilson; Jody Williams; were nominated as top students in the represented the liquidators of Great

72 VBN VBN 73 back of the lift

system (Victoria). His Honour County Court of Victoria County Court of also served as an Infantry Platoon Magistrates’ Court Victoria Commander and then transferred to of Victoria back of the lift back His Honour Judge Gray the Legal Corps at Victoria Barracks, rising to the rank of Captain. In Bar Roll No 1748 His Honour Judge 1973, his Honour and Denis Gibson His Honour Chief Magistrate Lauritsen Jordan also co-founded what is now known n 4 December 2012 his of the integrity and independence of as the Flemington & Kensington n 29 November 2012 his Court had a broad jurisdiction. Bar Roll No 1078 Honour Judge Ian Gray the courts and has been outspoken Community Legal Centre. His Honour Honour Magistrate Peter His Honour sat in the criminal and was appointed as a judge where he sees injustice. This was ohn Jordan was appointed to volunteered there for nearly 10 O Lauritsen was appointed as civil jurisdictions, and additionally of the County Court of never more evident than in 1996 the County Court on 1 February years. More recently, his Honour the Chief Magistrate for Victoria. as Coroner and Mining Warden, as OVictoria. At the same time he was when the Northern Territory J 2013, following more than volunteered regularly at the Western As the son of an Officer in the well as on many Tribunals. Needless also appointed as the State Coroner introduced mandatory sentencing for 39 years at the Bar, 12 of those years Suburbs Legal Service. From 2001 to Australian Army, his Honour was to say his Honour saw a lot of the for Victoria. property crimes. His Honour, then as silk. 2006 his Honour also served on the educated not just in Australia, but Territory and heard cases in many Since 2001 his Honour has been the Chief Magistrate of the Northern His Honour was educated at Parade Committee of the Common Law also in England and Germany. His aboriginal communities. It was during the Chief Magistrate for Victoria. Territory, said “There are times when College and at the University of Bar Association. Honour attended the Windsor Boys his Honour’s time in the Territory Prior to that appointment his heads of courts are duty bound to Melbourne, graduating in 1971 LLB A tribute to his Honour would be School in the Ruhr Valley in central that his reputation as an extremely Honour was Chief Magistrate for the speak out when they see the potential with Honours. His Honour served remiss if it did not mention his great East Germany, which had been hard working, compassionate, Northern Territory for 5½ years. for serious injustice as a result of a Articles at Purves & Purves, and sporting prowess. His Honour has famously flooded in 1943 by the deep thinking and perceptive man His Honour has been an outstanding change in the law”. was admitted to practice in March been described as an “outstanding, Dambusters RAF raid. On the family’s was cemented. Chief Magistrate in both jurisdictions. At the Bar his Honour was 1972. He signed the Bar Roll in high-level, amateur sportsman – as return to Australia, his Honour In 1989 his Honour was appointed Of his Honour’s 37 years of service interested in mediation, an interest November 1973 after reading with a player, committee member and completed his secondary education as a Victorian Magistrate and to the law, so far, 19 have been as which was further developed whilst Joseph Kaufman. coach”. His Honour played with the at Parade College in East Melbourne returned to Melbourne. His Honour a judicial officer and 17 as the head Chief Magistrate of Victoria. His During early years of professional Collingwood Reserves and won the and Bundoora (which were never enjoyed settling back into Melbourne of a jurisdiction. Honour was a co-mediator in the first life, his Honour studied part time goal kicking competition in 1971. the subject of RAF attention). Always life and particularly his time at the His Honour was educated at stage of the long running Aboriginal at Monash University, and had the In a career spanning 12 years and devoted to his studies, his Honour busy Broadmeadows Magistrates’ Wesley College and later Monash land dispute in the Halls Creek area distinction, in 1975, of being the first 300 senior games with several clubs, later graduated from the University Court. His Honour was appointed as University where he graduated with a on behalf of the Western Australian person to graduate Master of Laws by his Honour kicked over 1000 goals. of Melbourne with a double degree Deputy Chief Magistrate in July 2003. Bachelor of Arts/Law in 1972. Having Government. In June 2001 his coursework from a Victorian university. His Honour played with the Old of Arts/Law. Since his return His Honour has also graduated, his Honour ‘ran away to Honour was appointed to head the His Honour then returned to the Paradians when they achieved the After graduating, his Honour was undertaken tireless work on the Civil sea’. His Honour went to Darwin in Land and Property Unit of the United University of Melbourne, graduating “A” Grade premiership in1968 and in the first intake of the Leo Cussen Rules Committee and as early as 2004 1973 and worked as a junior deck Nations Transitional Administration with a Bachelor of Arts in 1977. with North Old Collegians when they Practical Training Course with won accolades for his work on the hand and cook on a prawn trawler in East Timor. Life at the Bar initially took his won the “A” Grade premiership in instructors such as Austin Asche Bar Dispute Resolution Committee. in the Gulf of Carpentaria. Spanish As Chief Magistrate his Honour Honour to the Magistrates’ Court 1982. He was Captain/Coach of North QC, and George Hampel (later QC, Outside of the Magistracy his omelette is reported to have been worked closely with the Bar and and later to the Supreme and County Old Collegians in 1980, elevating Supreme Court judge and professor). Honour enjoys his family, supports his signature dish. was often integral to achieving Courts, firstly in criminal cases and the team to 5th in the “A” Grade. Old His honour was admitted in 1975 the Melbourne Football Club, follows On his return, his Honour joint initiatives of the Bar and later for common law. He had a Paradians named his Honour in its and commenced practise with Brian the cricket and for the past 40 years commenced his articles in 1974 courts to improve access to justice. substantial practice on the “Team of the Century”. His Honour’s Cash in Little Collins Street. That this has walked regularly with Pat Casey under Phillip Gleeson of Gleeson & For example, his Honour, with her Circuit for many years both as junior football career later continued in the represented some loss to the Bar was of the Bar. Pat describes his Honour Co. Admitted to practice in 1975, his Honour Magistrate Fleming, was and silk. His Honour was frequently “SuperRules” Competition, joining evident when a lack of counsel meant as “the straightest dude in town”. Honour went on to practise at Schilling behind the establishment of the Bar opposed to combatants including Jeff the likes of the great Kevin Murray. his Honour’s was at In more than 24 years in judicial Missen & Impey. Having worked as Duty Barristers’ Scheme. Moore QC, Mal Titshall QC, his now- Cricket is another sporting love and a County Court criminal trial before a office, his Honour has shown all the a solicitor for some seven years, his Away from his judicial duties brother Judge Saccardo, and Paul for many years his Honour played at jury. Despite being thrown in the deep attributes necessary for an excellent Honour was called to the Bar in 1982 his Honour still enjoys his sailing, Scanlon QC. Titshall once described a very accomplished level, including end, his Honour’s client was acquitted. member of the judiciary. He has and read with Chris Connor. follows the Melbourne Football Club his Honour as “the best jury advocate for the Bar XI in their famous victory As a young solicitor with a good demonstrated a passion for justice and His Honour had two stints at the and enjoys quality dark chocolate. on circuit”. Judge Saccardo described against the Law Institute in 1985. knowledge of the law, his Honour a no nonsense attitude to dealing with Bar, interrupted by his appointment The Bar wishes his Honour his Honour as a “brilliant jury The Bar expects that the moved to Cain & Lamers in cases in a timely and cost effective as a Magistrate in the Northern continued success in his new role. advocate and master tactician”. combination of his Honour’s Preston, where his legal skills and manner, always with unwavering Territory between and 1990 and 1998. TIMOTHY BOURKE His Honour had two readers, Greg great skill as a barrister and his understanding of human nature were fairness. The Bar warmly welcomes Whilst at the Bar his Honour had Doran and Angus MacNab. commitment to the administration of welcome in a busy northern suburbs his Honour’s appointment, and trusts a successful criminal practice and His Honour also made a very justice, not to mention his sporting practice. that the man affectionately known as upon his return from the Territory His Honour is a strong substantial contribution to the prowess, will serve his Honour His Honour practised for some 12 “Buddy Holly”, for his black rimmed practised extensively in native title defender of the integrity administration of justice in other well on the County Court. The Bar years and in 1987 was then appointed glasses and hair, will continue to serve law, OH & S matters, personal injuries ways. In 1972-1973 while doing congratulates his Honour and wishes to the Magistracy in the Northern Victorians with great distinction. and administrative and industrial law. and independence National Service (Army) his Honour him every success in his new role. Territory. Without a County or District Timothy Bourke (with Fiona McLeod His Honour is a strong defender of the courts. established the Army Legal Aid TIM SECCULL Court in the NT, the Magistrates SC and Pat Casey)

74 VBN VBN 75 back of the lift

Professor Ford was highly successful, Work Cover Authority; then went to Graeme was a delightfully Obituaries advanced and innovative, introducing, the New South Wales Bar on dangerous, albeit eccentric, rogue under fair and benevolent leadership, 15 September 1998, practising there of a man who had a lifetime’s a number of important and forward until June 2012. experience with the Commonwealth looking measures. He was active on VBN Director of Public Prosecutions and innumerable law reform committees an acknowledged expertise in most and related bodies, the development Gerald Andrew Hardy areas of federal criminal law. of Asian law teaching and the He was my fourth pupil and brought Bar Roll No 2108 establishment of the Leo Cussen new heights of cynicism to our Institute, of which he was the erald Andrew Hardy died on chambers, together with an unrivalled Professor Emeritus Harold Ford am foundation chair. 7 November 2012. He was 71, knowledge of the antecedents of most After his formal retirement, he G having been born on 1 June 1941. of the magistracy. Bar Roll No 490 was for some time a consultant at a Gerald studied law at the University of Graeme is survived by his wife Jill, ith the death degree at Harvard and his dissertation comprehensive yet succinct coverage large law firm working in insolvency, Melbourne, graduating in 1964 with an daughter Hilary and son John and of Harold on unincorporated associations so beloved of practitioners. This which he also taught in Honours Degree. Gerald served in the fondly remembered by all who knew Ford, the was subsequently published. was combined, remarkably, with a a postgraduate course. Royal Australian Air Force Reserve in him in practice. Australian Thereafter, he never lost his interest deep and coherent exposition of Following a short illness, Harold the Special Duties Branch and attained I certainly learned more law in legal in American law and affairs; and underlying principles. died peacefully on 27 September 2012, the rank of Flight Lieutenant. Gerald his reading period with me than he community up to very recently avidly followed Professor Ford also produced (with a month short of his 92nd birthday. appeared to prosecute and defend learned via any reciprocal process – has lost a remarkable legal teacher, developments in the Supreme Court WA Lee) a leading text on trusts, Harold’s life touched and enriched in Courts Martial and at Courts of probably not the avowed purpose of Wscholar, law reformer and author, who and forthcoming election. as equity was his twin, preeminent so many and he will be remembered Inquiry. Gerald served articles with the mentor/pupil relationship! was the undisputed founding father In 1960, Harold was appointed interest. He also published as an inspiring teacher, gifted scholar, Bryan Morrissey at Field, Morrissey Graeme was also an inveterate of modern Australian corporations Robert Garran Professor of Law at prolifically in other areas, such as generous mentor, senior colleague & Co in Dandenong. He was admitted bric-a-brac collector and most days law. His contribution to commercial ANU but in 1962 returned to take up wills and succession, securities and Law School Dean. to practice on 1 March 1966 and in chambers after court began with law over six decades is unequalled the Chair of Commercial Law at the and death duties, sometimes with The above is an edited extract of a eulogy remained with the firm as an employee the words “guess what I found at and his influence impossible to University of Melbourne, which he eminent co‑authors including Marcia delivered by Professor Ford’s former solicitor for a little over a year. Gerald the market on Saturday?” Alas, my overstate. Harold Arthur John Ford held with great distinction until his Neave, Robert Baxt, Ian Hardingham student and colleague, the Hon Justice then practised for more than 20 years instincts were only occasionally able was born in Coburg in 1920 and grew retirement in 1984. and Graeme Samuel. Dodds‑Streeton. as Principal of GA Hardy & Co in to satisfy his curiosity... up during the Great Depression, In 1962, Harold married Gwenda, Harold’s mastery of the subjects Dandenong, acting for a number of Even as I write this article I am when his family experienced a secretary in the Law School, was enriched by an intellectual Evan James Smith large builders. Gerald signed the Bar gazing at a brass plate from the now considerable financial adversity. He whom he had shyly admired for attribute rare even amongst the most Roll on 20 November 1986 and read defunct Melbourne Tramways system Bar Roll No 1707 attended the University High School, some time. It was a long and very senior lawyers. His reasoning was with Henry Jolson OAM QC. He was which informs me what the penalty is and subsequently embarked on his happy marriage, and over the years, not constrained by specialisation van James Smith died on 18 accredited as a mediator on 26 July for spitting on a public conveyance. stellar legal career not as a cosseted the couple raised three children, and narrow experience. He could October 2012 in Sydney. Evan 1995 and nationally accredited on 8 Only Cantwell could have found it university student, but as a 16 year Rebecca, Margaret and John. discourse across the boundaries of E was 56, having been born on 27 May 2008. He was an active contributor or presented it to me as a memento of old part‑timer in the articled clerks’ When Harold took up his Chair, subject labels, cross‑referencing, October 1955. Evan was a member of on the Bar Dispute Resolution his time in chambers! course in which, following leave on company law was something cross‑questioning and the Victorian Bar from 1982 to 1993. Committee for 13 years from 1996 to I shall miss him. naval service during World War II, he of a ‘Cinderella’ subject. Its cross‑informing, from the vantage of Evan was admitted to practice in 2009. Gerald had two readers: Brendan Max Perry won the Supreme Court Prize. critical analysis and teaching his vast learning, prodigious memory Victoria on 2 June 1980 and practised McIntyre (now Principal Solicitor at Harold’s first academic were undeveloped. There was no and a special quality of mind. as a solicitor with F. Miller Robinson the Victorian Government Solicitor’s Graeme Douglas appointment was in 1949, as Australian text, and lawyers relied on Harold’s skilful approach made and then with Royal Insurance Office) and Andrew Cassidy. Gerald Johnstone Senior Lecturer at the Law School Professor Gower’s English work. complex commercial law intelligible Australia Limited until he came to practised at the Bar for more than 25 Bar Roll No 1034 University of Melbourne, which (save In 1974, Harold Ford met the and engaging. He usually began the Bar. He signed the Roll on 20 May years, transferring to the Retired List for a few brief intervals) remained Australian profession’s need with with the historical problems 1982 and read with David Morrow as of 15 October 2012. Gerald’s son, raeme Douglas Johnstone, his academic home. the first edition of what (through and mischiefs it was intended (later a Judge of the County Court). Sean, is a member of our Bar of more former State Coroner for Between 1949 and 1960, Harold 14 editions over four decades) to meet. He did not talk down Evan was on Foley’s List and than 20 years standing. G the State of Victoria, died in taught a wide repertoire of subjects. ultimately became Ford’s Principles or oversimplify, but closed the practised in Workers’ Compensation VBN November 2012. He was 67 years old. For some of this time, he worked of Corporations Law. An essential text immense knowledge gap between and personal injuries. He practised at Graeme’s childhood was spent under the transforming influence of for all legal practitioners, it is now himself and his students, enlivening the Victorian Bar until 31 May 1993. Graeme Hilaire in Geelong and he was educated at Sir Zelman Cowen and later recalled continued by his co‑authors, Professor his lectures with diverting puns and He had one Reader, Jeanette Smith. Cantwell Geelong College. In his final year the kindly encouragement he received Ian Ramsay and Dr Robert Austin. spontaneous wit. On 6 November 1987 Evan was at school, he was a house prefect, Bar Roll No 2688 from Sir Owen Dixon, who was a In his pioneering work, There is much more that can admitted to practice in New South a Cadet CUO and a member of the member of his appointment committee. Professor Ford surpassed Gower in only be touched on. As a Dean of Wales. After leaving the Victorian have been asked to write a school swimming team and the During 1954‑1955, Harold conceptual organisation. He offered the University of Melbourne Law Bar in 1993, Evan practised as a few words regarding Graeme school rifle shooting team that won completed a doctor of juridical science crystalline, accurate propositions, in School in 1964 and from 1967 to 1973, prosecutor with the New South Wales I Cantwell. the coveted Clowes Cup.

76 VBN VBN 77 back of the lift

He studied law at Monash Encouragement of Arts, Manufactures Prize in Refugee Law. In 2010 Rights Committee, assisted with in dangerous terms – and was a Richard Timothy University and graduated in 1968. and Commerce (Victoria Chapter) John received an award from the submissions to government, gave natural (and lethal) jury advocate. After a year as an Articled Clerk awarded Graeme the Hartnett Medal. Migration Institute of Australia for evidence at Senate Committees, As a Prosecutor for the Queen Taranto back of the lift back with Moule Hamilton and Derham The citation for that award covered distinguished service to Australian and participated in training and he prosecuted many major trials, Bar Roll No 2367 he moved to the bush to work with some four pages and included multiple Immigration. mentoring of younger members. He including the Painter and Docker ichard Taranto who died Bill Muntz in the well-known firm of examples of where his work had lead John came to the Bar in 1981, gave his time to all, selflessly, often murders and the Leith Ratten on 27 November 2012 was Muntz and Muntz in Dimboola, where to reforms in the area of community reading with Philip Mandie appearing pro bono. murder case. Ray prosecuted over R a young man who achieved he represented the firm’s clients in health and safety. (later QC and judge of the Court Fittingly, John was inducted as 150 homicide trials in his career. much in a short but richly lived life. the local Magistrates’ Courts. Bill Despite his massive work of Appeal). In his early days a Legend of the Bar shortly before Ray kindly arranged my pupillage His work, his dignity and all that he Muntz remembers him as “a very commitment, Graeme had time to he developed a wide practice, he died. with his great friend, the late F C achieved are a testament to a man conscientious solicitor who was enjoy hobbies and interests outside the predominantly in civil litigation. Guy Gilbert James. He did not actually bother to of exceptional quality. prepared to listen to people”. Graeme work environment. He was a member He took chambers in Equity inform my master of the arrangement Richard was educated at Xavier carried that particular skill with him of the Geelong Pistol Club and the Chambers, where many lasting John Raymond Perry until my arrival in chambers, which College and at the University of throughout his life. Hand Tool Preservation Association friendships were made. lead to several interesting phone calls Bar Roll No 672 Melbourne graduating with an LLB He signed the Bar Roll on 22 of Australia. He had a wide range of His abiding sense of social between the two of them! in 1985. After undertaking the Leo February 1973 and read with Adrian interests, including classic cars. justice saw him, with others, form have been asked to write a few His return to the Bar was welcomed Cussen Practical Training Course, Smithers. During Graeme’s life as a The last year of his life was beset the Victorian Foundation for the words about my cousin John and he rapidly re-established himself he was admitted to practice on barrister, he did general advocacy work with sadness with the illness and Survivors of Torture. In 1986 he Raymond Perry. as a leading criminal advocate. His I 5 November 1986. in a number of jurisdictions. He was subsequent death, in August, of became the inaugural chairman Ray was educated at Caulfield wife Margaret took his notes during He was Associate to the Hon particularly proud of his time spent his beloved wife, Shirley. Graeme’s of the Committee of Management. Grammar School and served his this time and her help and support Justice Ryan of the Federal Court of at the Small Claims Tribunal and the feelings for Shirley were summed up Thereafter he remained an active articles of clerkship at W B & O undoubtedly extended his career. Australia for two and a half years. His Residential Tenancies Tribunal, which in a modest but meaningful comment participant in many aspects of this McCutcheon (now incorporated To this day I suspect she knows more Honour was very saddened to hear of involved working directly with people. by Shirley’s daughter, Jenni. “He just seminal organisation. into DLA Phillips Fox). He was criminal law than many members Richard’s death and described him as Graeme was appointed as a adored Mum. They were a really good Consistent with his increasing a prominent sportsman in his of junior counsel, including myself. an exceptional man and remembered Magistrate in July 1986, much match”. interest in refugee issues, John younger days, playing several Ray and I did not oppose each fondly their time together on circuit of his time being spent at the Graeme is survived by his three served as a part time member of games for Richmond (although other in trials because of the chaos in Brisbane hearing cases for months Broadmeadows Magistrates’ Court step-daughters and their families and the Refugee Review Tribunal, at its ultimately switching his allegiance which would have resulted on on end. where he worked with his life his first wife, Carol. inception, from 1993 to 1997. On to Collingwood!), as well as boxing transcript – a fact for which I remain Richard’s friend from Grade 3, long friends Bob Kumar and Peter His Honour Magistrate Alsop returning to the Bar full time he at Melbourne University. profoundly grateful; I would not have Professor David Hipgrave, described Lauritsen. In 1998, he was appointed established International Refugee He was admitted to practice on survived the encounter. I do however Richard as the measure of a man. State Coroner. He retained that role John Aubrey Gibson AM Consulting, which, as the name 1 March 1962 and read with Hubert remember opposing him in the In 1989 Richard signed the Bar Roll until 2007, when he returned to the suggests, led him to places far and Frederico (later a judge of the Family County Court appellate list for two Bar Roll No 1648 and so began his brilliant career at Magistrates’ Court. wide, advising governments and Court of Australia). He was appointed days in a matter in which Margaret the Victorian Bar. The March Readers Upon commencing at the Coroners ohn Gibson was a tower of non-government organisations in a Prosecutor for the Queen on 20 May attempted to mediate, and which were a tight group, rich in diversity Court, Graeme took up the challenge a man, in stature, and in all aspects of refugee determination. 1969 and served in that office for eight his Honour Judge Howse eventually and experience and a little bold in of continuing and expanding the J his contribution to asylum His practice at the Bar changed years before moving to Queensland capped by telling us both that he their humour and gregarious in their investigatory aspect of the Victorian seekers, both in Australia and significantly, as he began to focus for a couple of years, then returning didn’t care what family relationship tastes. Richard stood tall among coronial jurisdiction. He understood around the world. more and more on judicial review to practise in Melbourne, mainly in we had and to behave ourselves. this unruly crew, I am sure they and highlighted the importance of John died on 28 September 2012. of migration and refugee decisions. criminal prosecutions. He retired from That advice was immediately ignored. will not mind my saying it, he set a the preventative aspects of the work He was 62. He is sadly missed by all This brought him regularly before practice in May 2002, transferring to Ray’s love of fast automobiles and gentlemanly standard that was very he did. those who were the beneficiaries of the Federal Magistrates’ Court, the the List of Retired Counsel. He was fishing, and his ability to combine the much admired. Bushfires (particularly the Linton his warmth, good humour, and zest Federal Court, and also the High a member of the Bar for more than two pursuits on circuit, is legendary. Richard read with Judge Tim bushfire); car crashes; transport for life. Court. Apart from Melbourne, his 50 years. He was always able to find an excuse Ginnane, who when delivering the industry dangers; workplace His considerable contribution practice took him all over Australia. Ray was a fearless and to return to Queensland on holiday eulogy at Richard’s funeral described accidents; fatal deficiencies in to humanity was recognised by He was truly a leader in his field. As remarkably gifted trial advocate where his love of boating and fishing him as intelligent, determined and household electrical heaters; aircraft the posthumous award of an such, he developed a widely read with a pronounced sense of could be fully indulged. destined for success. Richard had a accidents; hospital deaths; bad road AM in the 2013 Australia Day service entitled Judicial Review of mischief, which meant that any trial Ray passed away after a mercifully quiet determination combined with design and level crossings were just a Honours. In June 2012 the United Refugee and Migration Decisions. in which he was engaged would short time in care on the 14th of a searing intellect and acted with selection of the areas of preventable Nations High Commissioner for In 2003 John joined the Board not be without interest! Remarks February 2013, aged 79. integrity in everything that he did. deaths that he addressed. Refugees, Antonio Guterres, took of the Refugee Council of Australia, made to me about him often Ray is survived by his wife Margaret Richard loved the Bar and loved the Graeme’s dedication to his work led the unusual step of providing later becoming its President. In commenced with the words “Let me and children Anita and Chris, as well friends who he described as family to an international profile. Admired him with a personal letter of this role he was a champion for the tell you what he’s just done to me as his four grandchildren. He will be and, to his friends, he was family. by legal, industry and public health appreciation. Melbourne University cause of asylum seekers. ...” He had a profound knowledge sorely missed by all who knew and Mark Gibson of our Bar had lunch officials alike, his work was recognised Law School has honoured him by John provided great service to the of the personalities of the Bar and loved him. with Richard the day before his in 2004 when the Royal Society for the establishing an annual John Gibson Bar. He was active in the Human bench – occasionally expressed Max Perry debilitating heart attack in 1998 and

78 VBN VBN 79 back of the lift

cherishes their last conversation. a member of the Bar on the List of of Melbourne and at RMIT. After According to Mark, Richard was the Retired Counsel up to his death. leaving the Bar, Lindis pursued her sort of barrister who would have Richard was dignified, hard great passion in cooking by setting up back of the lift back been silk or appointed to the bench. working and emotionally intelligent, Selbonne Cooking School. september 2012 The barristers of the 10th floor, Owen a giant physically and intellectually Lindis was a woman of great Dixon Chambers West would agree with a heart that was big, just not beauty – both outward and inward. Victorian Bar that Richard would probably now strong enough. He is sadly missed She will be remembered as a be a silk or a judge if things had by all who loved him, including his wonderfully kind and generous Readers’ Course turned out differently. Susan Borg of Goddaughter, Gracie. woman. She loved hospitality and our Bar describes him as the most Her Honour Magistrate Fleming constantly opened up her home and gentlemanly man she has ever had invited people in – showering them the good fortune to know and she Lindis Krejus with food, warmth and friendship. describes him as family. Even strangers were the beneficiaries Bar Roll No 1487 Richard came from a big family and of her hospitality. One Sunday at her his parents Stella and Elio were full indis Krejus was born on 3 local church she spied a couple with of pride in their third son as were his December 1955 and died on 15 young children standing lonely to one brothers and sister and their children. L November 2012, aged 56. Lindis side and immediately approached Richard developed a thriving attended Mandeville Hall, Toorak and them, engaged them in conversation practice in commercial law and graduated LLB from the University and invited them to her home only given his industry, he was the of Melbourne in 1978. She served to discover that her guest was the “go to” man if you had a curly legal articles with her cousin James Ryan Consul General of the United States question. Richard would always before signing the Bar Roll on 24 May of America. take the time to assist any colleague 1979. Lindis read with John Dwyer Lindis had a deep Christian faith and his patience and good nature (later QC). Lindis also served as a which gave her strength, comfort was legendary. Legal Officer in the RAAF Reserves, and support throughout her life. There was more to Richard than attaining the rank of Squadron Leader. She wrote on the top of every page his career at the Bar. Richard’s Lindis had a reputation at the Bar of her court books the religious passions extended to sailing and the as a tough fighter but those who inscription “A M D G ” (For the symphony. Cut from the same cloth got to know her well soon realised Greater Glory of God). She was as Adonis he was a sought after that this reputation was merely a buoyed by her faith. Even when grinder in the Ocean races and the reflection of the care which she facing the trials and tribulations of Top of the Bay. He was a member held for her clients. Lindis ended up a terminal illness, she faced her fate of the Royal Brighton Yacht Club marrying one of her clients – Brian with much courage and dignity. and of the Queenscliff Cruising Verlin, and together they had a Lindis will be dearly missed by Yacht Club. wonderful marriage and much loved Brian, Patrick, her sister Kim, her Richard was engaged to be son Patrick. extended family and her many married to Sharon whom he In 2005, after 26 years of practice, friends at the Victorian Bar and described as the love of his life, Lindis left the Bar disillusioned with in the wider community. when he was struck down in 1998 the experience of some of her clients, The above is an edited extract of a eulogy by a heart attack. He suffered an although she never lost her love for delivered by the Hon Justice Robson acquired brain injury. He remained the law – teaching at the University on 23 November 2012

back row (l-r): Marcel White, James Hooper, David Oldfield, Markorius Habib, Sam Andrianakis, Alexander Patton, Gonged! Kimberley Moran, Sarah Varney, Ian Munt, Tom Smyth centre row (l-r): Penny Harris, Brad Barr, Sasha Dyrenfurth, Andrew Di Pasquale, Jennifer Collins, Erin Hill, Richard Stokes-Hore, Grace Morgan, Richard Scheelings, Carolyn Symons, Wendy Pollock (staff), Kathie Nickson (staff) seated row (l-r): Eleanor Coates, Leana Papaelia, Fatimah Taeburi (Overseas reader from the Solomon Islands), Solomon Kalu The Hon Justice Allsop AO, who was John Aubrey Gibson AM, deceased, The Hon Paul Marshall Guest QC (Overseas reader from the Solomon Islands), Andrea Mapp, Nawaar Hassan, Caryn van Proctor appointed an Officer of the Order of who was appointed a Member of OAM, was awarded a Medal of the front row (l-r): Adrian Bates, Kevin Jones, Sergio Freire, Andrew Imrie, Samuel Tovey, Matthew Cookson, Sarala Fitzgerald Australia, for distinguished service to the the Order of Australia, for significant Order of Australia, for service to the judiciary and the law, as a judge, through service to international relations as an community, and to the sport of rowing. reforms to equity and access, and through advocate for human rights. VBN contributions to the administration of maritime law and legal education.

80 VBN VBN 81 senior back of the lift counsel 2012

On 27 November 2012, the Chief Justice of Victoria, the Hon Chief Justice Warren AC, appointed the following barristers and solicitors as senior counsel in and for the State of Victoria, in order of seniority.

Trevor Stanley Peter George Christopher William MONTI SC SEST SC BEALE SC Date of Admission: Date of Admission: Date of Admission: 2 April 1984 2 April 1973 3 April 1986 Signed Bar Roll: 11 March 1976 Signed Bar Roll: 31 May 1990 Signed Bar Roll: 24 November 1988 Read with: Barney Cooney Read with: David Levin QC Read with: His Honour Judge Punshon Readers: Gary Forrester, Douglas Love Readers: Yildana Hardjadibrata and Readers: Anthony Beck-Godoy, Jane and Richard Morrow Nicholas Kotros Warren and Nick Goodfellow Areas of Practice: Common law, Areas of Practice: Revenue Law, Areas of Practice: Crime Personal Injuries, Medical Negligence, Administrative Law and Commercial Law Transport Accident, Public Liability, Sports Law, Equine Law, Defamation and George Anthony Superannuation. Also specialising in the Aileen Mary GEORGIOU SC trial of Ned Kelly with a view to obtaining RYAN SC Date of Admission: a retrial and where it is his intention to Date of Admission: 3 April 1986 represent Mr Kelly. 2 April 1984 Signed Bar Roll: 31 May 1990 Signed Bar Roll: 26 November 1992 Read with: Shane Collins Suzanne (Sue) Bridget Read with: Leslie Glick SC Readers: Shiva Pillai, Patricia Villella, Readers: Simone Bingham Caroline Ratcliffe-Jones, Rohan Barton, McNICOL SC back row (l-r): Adrian Finanzio SC, Andrew Clements SC, Philip Corbett SC, Christopher Beale SC, Toby Shnookal SC Areas of Practice: General commercial Michelle Mykytowycz, Temple Saville and middle rows (l-r): Carolyn Sparke SC, Kevin Lyons SC, Aileen Ryan SC, Michael Roberts SC, George Georgiou SC, Peter Sest SC, Date of Admission: practice including professional Christopher Farrington Bernard Quinn SC, Trevor Monti SC front row (l-r): Nicholas Pane SC, Nicholas Hopkins SC, Will Alstergren SC, Mark Robins SC, 2 April 1979 indemnity insurance, general Areas of Practice: Criminal law Neill Murdoch SC, Sue McNicol SC absent: Saul Holt SC Signed Bar Roll: 22 May 2003 insurance, contract, partnership Read with: The Hon Justice Elliott disputes, property law, leases, land Readers: – valuation, compulsory land acquisition Mark Andrew Areas of Practice: In general, claims, discrimination, disciplinary ROBINS SC Administrative Law, Commercial Law tribunals, trusts, testator’s family Benjamin Andrew Philip David Michael Grant Date of Admission: and Criminal Law. In particular, Privilege, maintenance and equitable claims. (Toby) SHNOOKAL SC CORBETT SC ROBERTS SC 30 March 1987 Discovery, Civil and Criminal Procedure, She has appeared in a number of Signed Bar Roll: 29 November 1990 Date of Admission: Date of Admission: Date of Admission: Evidence, Confidentiality, Privacy, reported cases involving solicitors’ and Read with: Leslie Glick SC 6 June 1988 31 March 1989 30 March 1989 Contempt of Court, Class Actions, Public barristers’ negligence. In addition, she Readers: Siobhan Ryan, Alexandra Golding Signed Bar Roll: 31 May 1990 Signed Bar Roll: 27 May 1993 Signed Bar Roll: 27 November 1992 Interest Immunity, Search Warrants, has appeared and advised in several and Andrew Morrison Read with: The Hon Justice Digby Read with: Rodney Garratt QC Read with: C.W.R. Harrison SC Subpoenas, Freedom of Information, valuation cases on behalf of Councils and Areas of Practice: General Commercial Law Readers: Benjamin Reid, Donald Charrett Readers: Edward Michael Kingston, Readers: Kyle Naish and Liam Connolly Taxation, Trade Practices and Traffic Law. the Valuer-General. She practises mainly including Banking and Finance, Building and and James Shaw Meredith Schilling, Adam Segal, Jamie Areas of Practice: Building and in the Supreme Court, County Court Construction, Corporations and Securities, Areas of Practice: Engineering and Richardson, Aphrodite Kouloubaritsis, Construction Law, Insurance Law, and VCAT. She has also been Deputy Equity/Trusts, Insurance, Disciplinary Construction Law Martin Guthrie, Lucy Kirwan and Harry Professional Indemnity, IT and IP disputes, Member of the Board of Examiners Tribunals, Professional Negligence, Property Forrester Land Acquisition and Compensation and since 2008. Law and Trade Practices Areas of Practice: Commercial and Equity Trade Practices

82 VBN VBN 83 quarterly counsel

Alistair Neill Kevin Joseph Aloysius Adrian John MURDOCH SC LYONS SC FINANZIO SC back of the lift back Date of Admission: Date of Admission: Date of Admission: 30 March 1989 1 April 1990 6 May 1996 David Levin QC Signed Bar Roll: 30 November 1995 Signed Bar Roll: 25 May 1995 Signed Bar Roll: 28 May 1998 Bar Roll No 1356 Read with: The Hon Justice David Beach Read with: The Hon Justice Hargrave Read with: John FM Larkins Readers: Vanessa Nicholson, David Readers: Karen Alexander, Timothy Readers: Nicola Collingwood, Andrew avid Levin QC graduated Seeman and Joel Harris Scotter, Neil McAteer, Holly van den Walker, David Deller, Rupert Watters, from Cambridge in 1971 Areas of Practice: Common Law, Heuvel, Thomas Warner and Naomi Jane Sharp, Tiphanie Acreman and Tom with a BA in Economics Insurance and Professional Negligence Hodgson Vasilopoulos D and Law before being called to Areas of Practice: Commercial Law Areas of Practice: Environment, Planning, the English Bar. After meeting and Local Government, Energy and Resources, marrying Norma, an Australian, he Nicholas PANE SC Administrative Law (Merits and Judicial moved to Australia in 1977. Before Date of Admission: Edvard William (Will) Review), Licensing and Disciplinary leaving England, David wrote to 13 March 1989 ALSTERGREN SC Tribunals, Torts and Inquests various people at the Australian Bars Signed Bar Roll: and recalls getting an encouraging Date of Admission: 27 May 1993 reply letter from Ken Hayne (as he 2 September 1991 Read with: Jack Hammond QC Bernard Francis then was). After arriving on Australian Signed Bar Roll: 28 November 1991 Readers: Toby Cogley and QUINN SC soil he sought advice from a solicitor Read with: Simon Wilson QC Kathryn (Kate) Bundrock who promptly recommended he go to Readers: Michael Rivette, David Turner, Admission date: 1997 Areas of Practice: Building and the Victorian Bar. A week later, David Roona Nida (nee Fazal), Tom Loughman, Signed Bar Roll: Construction and General Commercial found himself reading with John Daniel Pollak, Jonathan Gottschall, Daniel 27 May 1999 Larkins, who he found to be a “most Bidar, Miranda Ball and Chris Twidale Read with: Jonathan Beach QC delightful teacher”. David went on to Areas of Practice: Large and complex Readers: Tamara Quinn (nee Leane), Nicholas David sign the Bar Roll in November 1977 Commercial Trials and Appeals including Jonathan Kirkwood, Banjo McLachlan, HOPKINS SC and to take silk in 1997. Administrative Law (Judicial Review), Edward (Eddy) Gisonda, Helen Tiplady, David has been a man ahead of Date of Admission: Alternative Dispute Resolution/Mediation, Sam Gifford and Premala Thiagarajan the times in two areas – cycling 30 March 1989 Banking and Finance, Bankruptcy/ Areas of practice: General commercial, and computers. He started cycling Signed Bar Roll: 25 May 1995 Insolvency, Building and Construction, Corporations, Torts, Trade Practices, to work in 1977 well before it was Read with: Peter Bick QC Commercial Law, Corporations and Product Liability and representative the ‘thing to do’ for city workers. Readers: Nicholas Doukas, Kieren Naish, Securities, Defamation, Media & proceedings Despite soon discovering how hot Robert Craig, Patrick Noonan, Entertainment, Energy and Resources, the Melbourne weather could get, Mark McKillop, Matthew Albert and Equity/Trusts, Insurance, Intellectual how hilly Bourke St was and that the Carolyn Symons Property, Licensing and Disciplinary Saul Conrad HOLT SC only shower at the Bar was on the Areas of Practice: Commercial, Trade Tribunals, Planning and Local Government, Dates of admission: 1998 (NZ); 2006 (Qld) 13th floor in the superintendent’s Practices, Corporations, Building and Professional Negligence, Property Law, Current position: Chief Counsel, Victoria flat, David was not deterred. He Construction and Arbitration Taxation, Telecommunications/IT/ Legal Aid – appointed in 2012 continues to cycle to chambers each Computers, Torts, Trade Practices and Areas of practice: Criminal Law, day, travelling about 250 kms each Defence Force Inquiries and Commissions Administrative Law, Appellate Law and week as well as participating in Carolyn Hayley Human Rights group rides in Australia and overseas. SPARKE SC Andrew David David’s passion for cycling didn’t Date of Admission: stop at the pedal – he served six CLEMENTS SC 31 July 1989 years as a Board member for Bicycle Signed Bar Roll: 30 May 1991 Date of Admission: Victoria and also started ‘Wigs on reveal that in the Spring 1995 edition which court and at what time his or Read with: Noel Magee QC 4 December 1995 Wheels’ – the Victorian Bench and of the Victorian Bar News David her case is to be heard the following Readers: Sarah Turner, Leonie Englefield, Signed Bar Roll: 28 May 1998 Bar Bicycle Users Group. Along with wrote an article exhorting the virtues day”! David also started the Victorian Kevin Naethan (Vanuatu) and Karen Read with: John Noonan SC the members of Wigs on Wheels of the “electronic superhighway” to Bar Computer Users Group and was Le Faucheur Readers: Caroline Mills David has worked hard to get better members, explaining that “email in President of the Victorian Society for Areas of Practice: Specialising in Wills and Areas of Practice: Personal Injuries, facilities for the Bar’s resident cyclists years to come may well replace the Computers and the Law Inc. Probate, Testators Family Maintenance, Product Liability, Torts generally, including 60 bike racks (which is still fax” and that “before too long we David no longer has to haul briefs Equity, Trusts, Property, Superannuation, Professional Disciplinary Tribunals not enough) and more showers. can expect that information on court into chambers in his bike panniers Corporations and general commercial work In 1995 David started and wrote listings will be available, allowing – all he needs is a USB, the Cloud the Bar’s first website. The archives a barrister at home…to find out in and Dropbox.

84 VBN VBN 85 boilerplate

A Bit About Words This meaning is said to be obsolete, And in surgery, countless other of all”. (He was not talking about

by Julian Burnside but that can’t be right because Bailey -ectomies in which things are cut out. circumcision.) recognises it, and it has been used Most familiar is the appendicectomy: The unkindness is magnified increasingly since the early 1900s cutting out the appendix or, as the when you have regard to the in reference to the facial feature, not OED magnificently has it “Excision number of utterly useless words in reference to love potions. of the vermiform appendix of the which bask complacently in the But more than this striking gap in cæcum” (Note that it is a syllable OED. For example, words which the OED’s coverage is the quotation longer than appendectomy, which is have the hecato- prefix to describe from Phillips. How odd to rely on an Americanism not favoured by the a hundred utterly pointless things. anatomists for reference to the Australian medical profession). The hecatologue: a code of a hundred philtrum: the philtrum can be seen familiar CAT scan is Computer Aided rules; hecatomb: on offering of a plainly on the face without any Tomography: that is, ‘cutting’ the hundred oxen (terribly useful these further examination; but anatomists body by taking computer-processed days); hecatomped: an area one see things by cutting them. X-rays to produce tomographic hundred feet square; hecatonstylon: a Anatomy means cutting up, images or ‘slices’ of particular parts building having one hundred pylons; dissection. Its root is Greek tom of the body. hecatontarchy: government by a meaning cut. An atom is something Similarly, from the same root hundred rulers; and hecatophyllous: which cannot be cut into smaller parts we have: having leaves consisting each of (that’s what people thought at any rate epitome: an abridgment of a a hundred leaflets. when the atom was named). The OED work, extraction of its And let’s not oblive (= forget) puts it well. It defines atom this way: principal features. those other space-wasting words “A hypothetical body, so infinitely small microtome: in medicine, an which have the prefix sesqui-to as to be incapable of further division; instrument for cutting signify one and a half of something. and thus held to be one of the ultimate extremely thin sections How often have you had to resist particles of matter, by the concourse for microscopic work. the temptation to use sesquialter: of which, according to Leucippus tome: a volume of a (written) proportionate to another object as and Democritus, the universe was work. The original 1½ is to 1; or sesquiduple to express formed.” It was used this way from idea was that the the meaning ‘two and a half’; or the 15th century, well before the inner whole work was cut sesquipedal: a foot and a half long complexities of the atom had been into several tomes. (44.1 cm); or sesquiplane: a biplane discovered. (JJ Thompson discovered And just in case you having one wing of surface area not the electron as a component of the need it, a hecatontome more than half that of the other; atom in 1897; Rutherford found the is a collection of a but I suppose we will have to keep proton in about 1909, and the neutron hundred tomes. Oddly, sesquiplicate if only because its was not discovered until 1932, by a monotome is a work definition is so wonderfully obscure: James Chadwick.) Since then, these comprising a single “Bearing or involving the ratio of apparently fundamental, indivisible volume. Although the the square roots of the cubes of the components of the supposedly word has been around terms of a certain ratio”. (Actually, Cutting Through indivisible atom have themselves been since the 19th century, it the definition of syzygy when used found to be a fantastic mix of other bits is rarely used, perhaps as an expression in mathematics is n an earlier essay I drew attention mildly dysmorphic with a large forehead, short philtrum, and pieces: quarks, hadrons, gluons, because it makes no better: “A group of rational integral to several strange gaps in the Oxford and bushy eyebrows.” Clearly a reference to the thing we bosons and so-ons. sense. If it is a tome, it functions so related that, on their English Dictionary. And I do mean the are discussing. So the atom is not an atom at all, should be a slice of a being severally multiplied by other 20 volume work, with over 600,000 entries. But it gets another look in. The entry for philtre (also strictly, but the name has stuck. larger work. rational integral functions, the sum Strange that there could be any gaps in it. spelled philter) includes a passing reference to philtrum, The root is found in many places: Until I began researching this essay of the products vanishes identically; But one of the gaps is philtrum. It is the although it does not make much sense. Philtre is defined Anatomy: literally, cutting through. I had not been terribly excited also, the relation between such vertical groove from the nose to the upper lip. It is part as “A potion or drug (rarely, a charm of other kind) colostomy: cutting an artificial about the absence of philtrum from functions”.) ofI the natural topology of shaving, or applying lipstick. supposed to be capable of exciting sexual love”, with opening into the colon the OED, but I have become quite Philtrum has to go into the OED. Philtrum does not appear as a headword in the OED or supporting quotations from 1587 to 1858. But a second through the abdominal worked up about it. On any view it is If space is a problem, I think there in Johnson. However you will find it in Nathaniel Bailey’s meaning is given, supported by two quotations: wall. passing strange that the word which is a case to be argued for dumping English Dictionary (1742) and in the 2nd edition of the dichotomy: division of a whole into describes a visible thing common to some of these space-wasting words, 1653 R. Sanders Physiogn. 278 A mole on the philtrum Random House Dictionary of the English Language. two parts. all 7 billion people on earth, which is but if removing any of them to make or hollow of the upper lip, under the nostrils. Other American dictionaries recognise it. lobotomy: incision into (especially) neither embarrassing nor indecent, way for philtrum seems like too It does however appear in the OED, but only indirectly. 1706 Phillips, Philter or Philtrum… Among some Anatomists, the frontal lobe of the should be denied its place in the great a sacrifice, we might just ditch In the entry for dysmorphic, a quotation is given from it is taken for the Hollow that divides the upper Lip. brain, in the treatment Oxford sun. Its absence is, as Mark heptaglottologie, that is, a treatise

illustration by guy shield by illustration the 1997 Journal of Medical Genetics “Her face appeared of mental illness. Antony said “the most unkindest cut concerning seven languages.

86 VBN VBN 87 boilerplate Counsel’s Baggage Gallimaufry by john coldrey boilerplate

the Hon Peter Heerey Am Qc1

long with wig and It much commends a junior 1 With thanks to Cliff Pannam QC, Michael Wheelahan SC and Stephen O’Meara gown, a soft silk bag To note, from this, some Silk has thought SC to carry briefs has He was not quite a fool in court. 2 The Blue Bag, Australian Law Journal, long been part of a 15 August 1932, p 114 The practice has survived in Victoria have always regarded The final episode from my time as them remark to the other: “Did you barrister’sA distinctive paraphernalia. 3 ibid and also, perhaps to a lesser extent, humility in public life as DPP, and which remains etched in my see who that was?” Her companion The bag will be either red or blue, 4 New York Times, 12 December 1880 in other States. a pleasing characteristic mind, involved former Family Court replied: “Yes, that was the Chief with the barrister’s initials woven 5 [1910] AC 20 A particularly notable variation – particularly in others. Judge, Sally Brown. Magistrate, Sally Brown.” in large letters. 6 Otherwise still known as s 52 of the custom is the handing on of Some people are born Sally and I have been mates for many Suitably deflated I returned to my The colour is not just a matter of a red bag by a recipient, now a Silk, humble: others have years. It has been a comforting alliance office only to become further depressed the owner’s aesthetic preference. Any to an impressive junior. Stephen humbleness thrust upon them. of the vertically challenged. When she by the realisation that I had left the barrister can buy him or herself a blue O’Meara SC has been kind enough to II am a living example of the latter. was Chief Magistrate, we arranged to bottle of wine at the restaurant. Being bag, but a red bag is given as a gift by provide the writer with details of the I would like to present evidence for have lunch at a city restaurant. As we on a PAYE salary I immediately set out a Silk to a junior for outstanding work provenance of his own red bag, given this proposition. Of course I do so with entered the head waiter swept up to to retrieve the bottle. When I recovered on a case in which they were both to him by David Beach SC, now Justice considerable diffidence. Sally and assured her how honoured possession, it was still in its original retained. Beach of the Supreme Court. David When, to the surprise of some and the restaurant was to be favoured with paper bag. The only difference was that The custom originated in England. had received the bag from Bernard the shock of others, I was appointed her patronage. (That was the gist of it now bore a message written in biro. Up until the early 19th century King’s Bongiorno AO, QC, recently retired Director of Public Prosecutions, the it.) I stood by – silent but impressed. With increasing curiosity I put on my Counsel received an allowance from from the Court of Appeal. His donor Government provided me with a The head waiter then briefly turned glasses to decipher the words. It read: the Crown of £40 per annum, together was Barry Beach QC, later Justice beautiful new Ford Fairlane (Ghia). his attention to me. Ever the optimist, “Left by the man with Sally Brown”. with pens and paper and also an Beach who in turn had received the The first time I filled it with petrol I had brought my own bottle of wine. Life at the Supreme Court was annual allowance of bags, “the latter bag from William Crockett QC, later (using a Government card), the service He informed me perfunctorily that a little kinder. being distributed among juniors who Justice Crockett. He had been given station attendant remarked generously: had made such progress as not to be the bag by E O Moodie-Heddle QC, “You chauffers certainly keep these cars “We don’t have a Director of Public Prosecutions here, able to carry their briefs conveniently later a judge of the County Court. in sparkling condition!” in their hands.”2 but we do have the Director of Public Prostitution.” Moodie-Heddle received the bag Some time later I was visiting an In 1830, presumably in an early from Richard Eggleston QC, later a Old Peoples’ Home (sorry, Retirement Fortunately the Chief Commissioner of Police (then Mick instance of swingeing budget cuts, the judge of the Commonwealth Court Village) when I was accosted by Crown stopped the allowance, pens, Miller) had the presence of mind to say: “He’ll do”. of Conciliation and Arbitration and his a venerable inmate who queried: papers and bags. But the practice of donor, originator of the bag, was Sir “Haven’t I seen your face somewhere giving the bags to juniors continued. the restaurant was licensed and he Barristers whose case preparation Douglas Menzies KC, later a Justice before?” According to one source,3 the pre-1830 confiscated the bottle promising to had extended to reading the Daily of the High Court. “Quite possibly,” I replied, with bags were purple but, for reasons lost return it later. Law List, at least knew who I was. And The practice is commended to just a modicum of preening. After in the mists of time, red was adopted. As we were eating our meal, the counsel disagreed with my tentative present day Silks who must surely all, the noble visage had appeared Junior counsel used blue bags, which proprietor of the establishment expressions of legal principle “with from time to time recognise in intermittently on the television news. served the same purpose, but with this descended upon our table and respect”, and frequently “with the a junior the famous ‘red bag The old bloke nodded thoughtfully. important exception. Blue bags could expressed the exquisite delight greatest respect”. Additionally, one had moment’. While the present piece “Yes, didn’t you work on the boning not be brought into the courtroom occasioned by Sally Brown’s presence. the inestimable benefit of the Court of purports to be a modest work of line at William Angliss’?” itself, except in the Chancery courts.4 (That was the gist of it.) I sat by – silent Appeal whose members never shrank history and professional sociology, As part of my role I was ensconced Lord Justice Mackinnon, in his book but impressed. At no time did his from the task of eliminating any signs of and not an advertisement subject in a grandiose office in the Old Mint On Circuit, records a verse given to attention drift to me. “first instance” hubris. to the Competition and Consumer building. A visitor inquiring as to him by Artemus Jones (presumably On leaving the restaurant I was I also experienced moments Act 2010 (Cth) Schedule 2, Chapter my whereabouts was told by the the famous litigant of Hulton v Jones5 ) saying farewell to Sally when I akin to slapstick. Like the day the 2 Section 18,6 Silks minded to gatekeeper: “We don’t have a Director which includes the following: noticed several young women staring court adjourned and I rose from my follow the custom can obtain of Public Prosecutions here, but in our direction. Although not bearing ergonomic chair while graciously Then flaunt the scarlet sack! Let briefs a red bag from Ludlows, 530 we do have the Director of Public a public profile of Frank Vincent-like acknowledging the ritual bowing of Swell out its ruddy folds in sheafs Lonsdale Street (or other Prostitution.” proportions (I had to get his name in), counsel, only to find that the door Let courage spur the litigan such provender of arcane Fortunately the Chief Commissioner I was sufficiently vain to wonder if leading to the court ante-room had And keep the bloody bag from want. accouterments), for $295. of Police (then Mick Miller) had the they had recognised me. As I followed become locked. I was reduced to facing To any wise solicitor presence of mind to say: “He’ll do.” them up the street I heard one of counsel and instructing solicitors

Stephen O’Meara SC’s red bag – the originator was Sir Douglas Menzies KC 88 VBN VBN 89 desperately attempting to suppress before I disappeared completely This was no fanciful fear. Justice their primordial glee while I uttered from the view of learned counsel. Bill Gillard was once recorded in a Red Bag, Blue Bag such lame comments as: “This must be To the general amusement (of newspaper article as Justice Dullard. boilerplate a strategy of the Chief Justice to make others) he suggested that, as a safety I recall this because at the time I owed us work longer hours.” measure, I should procure a hubcap him some money and, in an attempt at On another occasion, when I and insert it in my trousers. (I hasten humour, I asked him in what name he was actually sitting in the Court of to add that such levity in no way would like the cheque to be written. Appeal (making up the numbers), reflected on the quality of counsels’ It is fair to say that, on this occasion, my judicial throne commenced to arguments.) His Honour’s level of amusement collapse in a series of dull thuds. For During my time at the court I was accorded with that often attributed one dreadful instant I had a vision constantly concerned that, one day, to Queen Victoria. of a medieval impaling on its central a dyslexic reporter would refer to “a Anyway, I rest my case. Now if you’ll steel pole. Fortunately, Chief Justice decision of Justice Clodrey” – and the excuse me, it’s time to go and check on Phillips adjourned the court just secret would finally be out! my eligibility to inherit the earth.

How and When Should a Member Verbatim of Counsel Speak with the Media? Have you heard something odd in court? Been on the receiving instructing solicitor, client or even an innocent bystander. end of a judicial bon mot? Muttered a quip of your own? Send in the transcript extract Red Bag If actually asked to comment, there is an infinite range to [email protected], or drop it into one of the editors’ pigeonholes. of facial contortions available, and of course “I couldn’t possibly comment”. he advice of the celebrated amalgam advocate, Note that the rule only applies while there is the late Frank Galbally, was “Keep your faith in involvement in current proceedings. So, case over and Supreme Court of Victoria WITNESS: Something that should be HIS HONOUR: I think by the time this Jesus, and walk towards the cameras.” brief returned, it’s open slather. With some fast footwork, in the toilet but should not have been case finishes, we’ll all be interested in T But how to follow that dictum and still comply with the Hudspeth v Scholastic Cleaning & an adverse judgment handed down at ten in the morning in there. It was a big turd but it was retirement villages. Bar’s Good Conduct Guide, paragraph 8.58 of which says Consultancy Services & Ors can be countered on the six o’clock news. unusually big so I had been there before ANDERSON SC: I think that’s right, that a barrister involved in current proceedings: Before Justice Dixon, There is also paragraph 8.60, which suggests avoiding so I remember being shown things in the Your Honour. I think that’s... 28 November 2012 must not personally publish or take any steps towards the “giving ‘door of the court’ interviews to waiting toilet, yes. HIS HONOUR: From different JOHN RICHARDS SC (cross-examination publication of any material concerning a proceeding which is: journalists.” Now ‘door of the court’ is a concept which RICHARDS SC: We don’t have to go perspectives. of witness who denied being called by the (a) inaccurate; may extend to steps down from the door, but certainly into that. ANDERSON SC: Yes, we’ll be able to plaintiff to inspect vandalism in a toilet): … (b) discloses confidential information; or not to the footpath, which is public property. Nor to HIS HONOUR: You are not proposing to afford it by then, Your Honour. So it might be the case in fact you did (c) appears to or does express the opinion of the barrister a nearby café. A gloss on the rule is that gossip with tender that, I take it, Mr Richards? come and look at the mess but don’t now as to the merits of the proceeding or any issue arising journos is permissible, subject to them paying with recall doing so? Federal Court of Australia in the proceeding. their unlimited expense accounts and nobody drinking WITNESS: No, I would remember going Supreme Court of Victoria skinny soy lattes. Fair trade coffee is optional however. Gun Capital Management Ltd v Solamind Striding towards the throng an appropriate persona must to see something like that. I had been to While it is true that the journos will cheerfully, well 500 Burwood Highway Pty Ltd v Australian Pty Ltd & Ors be adopted. Recent graduates of the Readers’ Course will the toilet before to see just a very strange fairly cheerfully, go to jail rather than reveal their Unity Ltd & Ors Before Justice North, 6 July 2012 of course have been greatly assisted by the seminar on incident but I do- sources, the truth of the matter is that you would rather Before Justice Vickery, 4 October 2012 TIM NORTH SC (cross-examination of the method acting conducted by Geoffrey Rush (or was it Bert RICHARDS SC: Just to see what, I beg like to be revealed. STEWART ANDERSON SC (opposed to plaintiff’s sole director, who claimed several Newton?). your pardon? Delany SC and cross-examining a quantity millions from the defendants): But you’re Does putting on a stern imitation of WITNESS: You don’t want to know. surveyor): And what type of project, in not seeking recompense at all? convey a sense of hopelessness and facing imminent Blue Bag

RICHARDS SC: You had seen messes illustration by guy shield general terms, was that? WITNESS: Well, no. I’m a very easy- disaster with sang-froid? Or that delight is being before, had you? WITNESS: It was a – a retirement going guy. I don’t chase people for money heroically supressed? WITNESS: Not that type of mess, s junior counsel this question hardly ever living facility… except it didn’t have the and people don’t chase me for money. What about a cheerful grin, perhaps a little skip? TV it was something unusual that arises. Thankfully. Of course, there is a Rule aged – that it was more of an over 55s HIS HONOUR: I thought that was what journalists speaking to camera have perfected a kind [the plaintiff] showed me. about it. Several in fact. None are useful for retirement village. this case is about?... We could all pack up of restrained ballet with open hands at waist level, but A RICHARDS SC: What was that? self-promotion. ANDERSON SC: Yes, Mr Delany would and go home if you don’t. if barristers do that, aren’t they saying “Believe me, and WITNESS: Something in the toilet. That should be enough to tell even the most be interested in that, I’m sure. NORTH SC: Is that an offer, sir? incidentally aren’t I cute?” There is also the need to hand RICHARDS SC: What was that? vainglorious barrister to beware. But sometimes even over books and papers to free up the hands – to a junior,

90 VBN VBN 91 ADVERTISEMENT

Book R eviews boilerplate

A Helpful and Accessible Work on Human Rights smart people are drawn, like Narcissus, to be doomed by their vanity. Kurt Esser, Principal, Esser Legal Nevertheless, if pulled into a media scrum by the fearlessness of your leader, the most important thing to remember is to make sure they spell your he title of this The first two chapters are devoted leader’s name correctly. This will boost your leader’s work is a precise to the United Nations and important ego as well as making it easier for the relevant and accurate UN treaties such as the Convention officer to draw necessary contempt charges or account of its Relating to the Status of Refugees, ethics committee complaints. If it were somehow contents, in the the Vienna Convention on the Law of possible to pixelate your face in advance, that sense that it is Treaties, and the Convention Against would be helpful. principally a collection of sources Torture and Other Cruel or Inhuman or Humble juniors may be assailed by media hacks Trather than commentary. Degrading Treatment or Punishment. outside of Court and urged to cough up names and The authors have very carefully Chapter three deals with treaties of juicy details. But such attempts to catch you may be gathered together into one very more general application such as the easily thwarted by a theatrical flourish of the robe elegant volume, all the important Universal Declaration of Human Rights, Human Rights: Treaties, Statutes (or cape, worn voluntarily for such a purpose, if international treaties and statutes the Declaration on the Elimination and Cases by Flynn, Garkawe & Holt appearing in the Magistrates’ Court). that touch on human rights law in of Violence against Women and the (LexisNexis Butterworths, 2011) What’s trickier is the subtle question breathed Australia. The materials date back Declaration on the Rights of Indigenous over a drink with a journalist ‘friend’. It’s then your to the Magna Carta and extend, for Peoples. Chapter four contains a guard will be down and you’ll be compelled to example, to the latest amendments generous selection of statutes that in full. The authors wisely chose, divulge all your secrets and probably dark (hitherto to the Australian Human Rights include the English Habeas Corpus however, to include both the Human unrevealed) truths of the Bar itself, such as that Commission Act 1986 (Cth). As well, Act 1679, Bill of Rights 1688, Act of Rights Act 2004 (ACT) and the Charter wigs are made in a cellar in ODW from the cured the authors have made an excellent Settlement 1700. In addition there of Human Rights and Responsibilities intestines of baby seals (stretched by blind slave selection of the important High Court is a well-edited summary of the Act 2006 (Vic) in full. Chapter five children); that fees are determined by artfully cases that deal with human rights law Australian Constitution plus all the reproduces the leading High Court throwing a gumboot down a corridor marked in Australia. Commonwealth legislation that deals cases dealing with human rights, with graded monetary points; and that silks were The result is a highly useful and with human rights. At the end of the while chapter six compares Australian traditionally (no longer, thank goodness) appointed comprehensive compendium of chapter there is a comparative table human rights law with a smattering of by a coven of Supreme Court Library cleaners who source materials which readers which sets out Commonwealth, State other jurisdictions, such as the United would sacrifice readers on piles of burning VRs and will find particularly accessible. and Territory anti-discriminatory States and the United Kingdom. drink the blood of pigeons roosting in the dome in The selection of source material legislation, subject by subject, which As one would expect, the vast order to give themselves powers of divination. has been methodical, comprehensive practitioners, public servants, students majority of the book is comprised So as to the ‘when,’ the answer ought be never. and scholarly. The methodology of the and particularly members of the of sources rather than commentary. As to the ‘how,’ careful consideration is required. work is to go from the international public will find extremely useful Helpfully, all source material is sign- We are not of a profession lacking pomp, so I and general to the specific and and time-saving. Dealing with anti- posted by the use of a bold vertical suggest the ‘how’ should match our predilection local, then, in the final chapter, to discrimination laws in the states and line down the margin of each page, for grandiosity. To this end, always appear robed compare Australian law with other territories this way obviated the need which clearly delineates original in front of a bank of calf-bound tomes (strap the jurisdictions. to reproduce all the relevant legislation sources from commentary and notes. bookshelf to crawling actors, so you can walk and talk for the cameras). Try to give interviews whilst The authors have very carefully gathered together into one very elegant running (robed), or in the bath (robed). Write only by hand, and in 12-foot high letters along the clean volume, all the important international treaties and statutes that touch on walls of the County Court building. human rights law in Australia.

92 VBN VBN 93 boilerplate

Book A Timely Publication Reviews Reproduced, with permission, is the foreword to the book by Chief Justice Bathurst of the Supreme Court of New South Wales.

In general, notes and commentary press are two of the most significant which all appear at the end of watershed moments in the history quoted material, have been kept of our relationship with information. to a minimum, which tends to However, that timeline is also both streamline and simplify peppered with smaller moments the work of the reader. Because that nonetheless reflect fundamental of the brevity of the notes, this changes in our assumptions about, reviewer was tantalised to explore and expectations of, information. The the authors’ suggestions rather publication and rapid popularity of than be overwhelmed by copious the Guinness Book of Records is one references to other commentary. such smaller moment. It was by no The work does not pretend to means the first attempt to collate be a detailed or comprehensive types of information into a single Prof Carolyn Evans (Dean of the Melbourne Law School), The Hon Justice exposition of human rights law, volume. To take just one example, Weinberg, the author, Dr Jacqui Horan, The Hon Justice Whelan for a practitioner, for example, in dictionaries in various forms and Prof George Hampel AM QC at the launch of the book the area of refugees, or the law have been around for millennia. relating to deportation. While it Nevertheless, the popularity of the immediately, in direct response to and law presented in court. Legal contemporary Australian jury and will serve as an excellent source Guinness Book of Records from 1955 our inquiries. In addition to feeling directions delivered orally, and often its environment can therefore be of learning about the evolution reflects a shift towards a cultural entitled to information, we expect at length, evidence presented orally described as ‘accomplished’. But this of the protection of human rights interest in and expectation that an it to be intelligently tailored to our and not in chronological order, is merely the start. in Australia, it does not purport increasing number of classes of Juries in the 21st Century needs. Search engines filter results and prohibitions on independent Dr Horan then sought out a to deal with the more practical information – in this case, by Dr Jacqui Horan according to past searches, surfing research create an environment second, even more fraught, area issues human rights lawyers may world superlatives – are knowable, histories and geographic location. more at odds with the learning and of study: social and technological confront. Does a privative clause he original Guinness Book useful, and above all, accessible. Social networks identify our friends information expectations of jurors change in the 21st century. in the Migration Act 1958 (Cth) of Records came about as The advent of the internet is a and work associates before we’ve than ever before. Thus, the 21st Committing printed words to paper deprive a court of jurisdiction to a result of an unresolved watershed moment in the history T searched for them. Maps provide century jury faces unique challenges, in a time of such rapid change, in review a refusal of protection? dispute at a shooting party in County of information closer in scale directions, estimate travel times, and ripe for exploration and analysis. order to commentate on that change Will that person be entitled to Wexford, Ireland in 1951. to the introduction of written give real time traffic updates and I come now to say something about no less, would in many other hands complementary protection? Sir Hugh Beaver, who was then language or movable type. It has public transportation timetables. We this particular publication, which have been a fool’s errand. The Although the work has limited the managing director of Guinness changed our relationship with are thus expected to do less work to attempts to do just that. word ‘foolhardy’ may have applied. application in practical problem- Brewery, wanted to know which was information radically and irrevocably. retrieve relevant information, and ‘Timely’ is a word often applied However, Dr Horan manages to solving in this area, it is obviously the fastest game bird in Europe. Nevertheless, its influence shares have far less patience for questions to newly published legal research; tackle the impact of technological pitched for the more general Despite heated arguments and a characteristics with the introduction that go unanswered. This shifting however, in this case ‘timely’ is innovation and social media on the reader. search of the host’s extensive library, of the 1955 Guinness Book of relationship with information is also inadequate to express the value of jury system in a manner that will The work is a very helpful and the answer could not be found. And Records: it has exponentially grown reflected in our education system, this work and the unique challenges remain relevant through the years of accessible addition in the area of so Beaver, realising that similar the public’s expectation that more cover courtesy the federation press which increasingly emphasises that were faced in bringing it to change to come. Australian human rights law. disputes must be happening in pubs and more classes of information the ability to identify necessary fruition. A better word is needed. I fear I have no choice, therefore, but It will lead a useful life on the and clubs around the world, set about will be knowable, useful and easily information and then obtain and To begin with, juries are a to resort to superlatives in describing book-shelf of practitioners, public creating a definitive collection of the accessible. As Dr Horan explains, analyse it, over the ability to simply notoriously difficult area of study. this work. This book is the most timely, servants, students and others world’s superlative facts. our expanding expectations have retain and regurgitate information. They are, by their very nature, accomplished and not-at-all-foolhardy whose important job it is to advise The first edition of the Guinness significant implications for the However, this way of being is, in secretive and sacrosanct. They contribution to the study of juries people, whose human rights may Book of Records was published in modern jury. Dr Horan’s words, ‘fundamentally are also nearly impossible to in Australia this century. Perhaps be infringed, particularly those 1955, and within six months it was Applications like search at odds’ with a central concept of replicate ‘in the lab’ for the purpose Guinness will take notice. vulnerable people who suffer from a number one bestseller in the UK.1 engines, GPS enabled maps and the jury system: that jury members of observation. A work which a disability. The innovation of written language social networks make us expect 1 Guinness World Records, “About”, confine themselves to the evidence comprehensively profiles the www.guinnessworldrecord.com. and the invention of the printing and feel entitled to information

94 VBN VBN 95 boilerplate

5. Nando’s 400 Little Bourke Street and Breakfast, lunch Food & Drink Paco’s Tacos 600 Bourke Street, Melbourne. Both open or coffee on a Monday to Sunday from 11am to 10pm. Saturday Nando’s is a stalwart option that 7. Silo by Joost 123 Hardware Street, seems to be a common after-hours Melbourne, 3000. Open Monday to go-to place for many barristers. Saturday from 6.30am to 3.30pm. The Portuguese-style protein hit Joost Bakker came to prominence on offer can be reasonably healthy after launching waste-free pop-up if sufficient self-restraint can be restaurants in Melbourne, Sydney exercised to avoid also ordering and Perth. Silo is a permanent the chips. Chicken tenderloins with embodiment of his waste-free a side of coleslaw was suggested vision. In keeping with the overall There is also barbecued corn and as a good option by one senior sustainable ethos, Silo’s simple lunch the less authentic option of nachos. commercial barrister. Wraps and menu relies on seasonal, ethically A buzzing place, Paco’s makes more burgers are other alternatives. produced produce. While its menu sense for an after-work drink than a Add a grilled corn cob and you started out as being vegetarian, this is calm place in which to grab a quick may have a balanced meal. no longer the case; roast mutton was evening bite. However, the staff is 6. 1000 £ Bend 361 Little Lonsdale Street, on offer at a recent visit. There are happy for you to take away your Melbourne. Open Monday to Wednesday also plenty of interesting sandwiches order and accept phone orders. from 8am to 11pm; Thursday to Friday to have in or take-away. Serving sizes 4. +39 Pizzeria 362 Little Bourke Street, from 8am to 1am; Saturday from 10am lean towards conservative more than Melbourne. Open Monday to Sunday to 1am and Sunday from 10am to 11pm. generous – not necessarily a negative, from 11am to 10pm. Named after the 1000 £ Bend is a surprisingly and the quality compensates for the Brother Baba Budan international dialling code for Italy, cavernous warehouse-style space, lack of largesse. +39 is an all-too-rare decent pizza whose opening hours are likely to 8. Demi Tasse Shop 8, 550 Lonsdale Street, place within the CBD. There are also rival, if not defeat, those of even Melbourne. Open Monday to Friday from many pasta dishes that would make the most hard-working barrister. 7am to 5pm and Saturday from 10am to a good weeknight dinner. Dine-in or The café’s menu includes a diverse OUT OF SESSIONS DINING 2pm. As is well known to many, Demi takeaway, + 39 won’t deliver but will range of dishes with multiple Tasse is a tiny café at the foot of accept phone orders. culinary origins. Louise Martin Joan Rosanove Chambers that sells 14 Queen Victoria Market this way LA TROBE ST ven with the flexibility Evening meals its brown rice fillings might be an Melbourne CBD that lap-tops and the affront to some purists. Particularly 1. Mamak 366 Lonsdale Street, 6 internet bring, there good for dinner are the hot dishes, Melbourne. Open seven days are times when you are which include a range of curries 9 10 LITTLE LONSDALE ST from 11.30am to 2.30pm and 5.30pm to 7 likely to find yourself and casseroles. During lunchtime, 10.00pm (and on Friday and Saturday until 8 1 in chambers late in the take-away becomes almost LONSDALE ST 2am). Named best new restaurant evening or on the weekend. With mandatory as gaining a seat at this of 2013 in The Age Good Food Under Ethat in mind, Victorian Bar News has tiny café is just about impossible. 5 4 LITTLE BOURKE ST $30 guide, Mamak is a Melbourne compiled a list of selected cafes and Happily, this problem doesn’t exist 3 13 15

version of the much-lauded Sydney LANE HARDWARE restaurants close to the legal precinct for evening customers. institution specialising in roti bread. that are open after ordinary business 5 12 While a queue often stretches out 3. Paco’s Tacos 500 Bourke Street, BOURKE ST hours are over. 11 its door, don’t be deterred: it moves Melbourne. Open Monday to Tuesday

quickly and at its end is the delicious from 12pm to 2.30pm and Wednesday LITTLE COLLINS ST EXHIBITION ST photo courtesy of jennifer jones pan-fried folded flat bread that is a to Friday from 12pm until late. In the 12 hallmark of Malaysian cuisine. If you legal precinct’s heart, overlooking

are a roti lover, this is a wondrous the Supreme Court, is Paco’s Tacos, a SPENCER ST 2 RUSSELL ST RUSSELL KING ST

WILLIAM ST COLLINS ST QUEEN ST ELIZABETH ST place. buzzing Mexican cantina. The menu’s SWANSTON ST main focus is $6 tacos. Highlights 2. Purple Peanut 20/620 Collins Street, are a semolina crusted fish taco with 1. Mamak 4. +39 Pizzeria 7. Silo by Joost 10. Hardware Societe FLINDERS13. LN Roll’d Melbourne. Open Monday to Saturday pickled cabbage, a spice-crumbed 2. Purple Peanut 5. Nando’s 8. Demi Tasse 11. RACV Club 14. Queen Victoria Market from 10am to 8.30pm. This quirky and 3. Paco’s Tacos 6. 1000 £ Bend 9. Back Pocket 12. Le Triskel 15. Brother Baba Budan

prawn taco with salsa verde, and a SPRING ST unassuming café sells a wide range Mamak chorizo taco with spicy corn salsa. FLINDERS ST of high-quality sushi, although

96 VBN VBN 97 Le Triskel boilerplate

14. Queen Victoria Market 513 Elizabeth Street, Melbourne. On weekends, the Queen Victoria Market is open on a Saturday from 6am to 3pm and on a Sunday from 9am to 4pm. For a DIY option, a trip to the Queen Victoria Market can yield you an interesting picnic-style weekend Tracking Down the Trucks lunch. You can buy breads, dips and salads from many of the stalls or Schweinhaxe pay a visit to some of the top-quality gourmet providers in the deli hall for a warm takeaway meal. Bratwurst had a choice. Vue individual tacos ($6) or as a taco plate It offered two burgers – one beef or borek anyone? De Monde, with its ($15). The taco plate is served with a ($11) and one mushroom ($10) – fries, panoramic views, or choice of two tacos and a guacamole coke and spring water. That was it. 15. Brother Baba Budan 359 Little Bourke food trucks located dip with corn chips. We ordered two We ordered the meat burger, named Street, Melbourne. Open Monday to in mystery places. taco plates so that we could taste a “Raph Burger”, and some fries. The Saturday from 7am to 5pm and Sunday Food trucks! them all. burger was a 170gm grass-fed meat 9am to 5pm. Brother Baba Budan Food trucks that seek to offer While we waited the lights in the pattie with cos lettuce, tomato, cheese, provides one of Melbourne’s best a range of high-quality hot and cold Monday to Sunday from 6.30am to ‘gourmet’I food are now commonplace truck went off. As a result we could onion and a “stereo” sauce. It tasted coffees from its dainty Little Bourke meals and great coffee. What might 10.30pm and the coffee lounge from 7am in Melbourne. The concept started not see much as there was minimal too beefy and the meat was a little Street premises. For the time- be less well known is that it is also to 11pm. If you’re a member, the RACV out in New York. They are not like street lighting. The lights eventually rare in parts. No issue if consumed pressed, its pastries from Brioche open on a Saturday. club is an excellent venue for after- the food caravans parked outside came back on. The best option for our in the late hours after a few ales but by Philip would make a quick and hours meals. On Sundays, it is worth nightclubs and footy grounds. These consumption of the tacos was a seat not too good at 6.45pm on a Tuesday 9. Back Pocket 3/535 Little Lonsdale Street, butter-filled make-do lunch. a visit for the good-value carvery trucks seek to offer a better quality of at a bus stop. I expected that there night. The fries were shoestring-like, Melbourne. Open Monday to Wednesday lunch. A quicker meal, or just a drink, food to a more discerning audience might be some shortcomings! very salty and, as a result, very tasty. from 6am to 6pm; Thursday to Friday from Delivery can be had in the club’s coffee lounge. and are often owned and run by real The fish taco was served with Again, no place to sit so all of this was 6am until late; and Saturday from 8.30am Misschu Tuckshop ‘foodies’ – ex-chefs and the like. They coleslaw, lime and homemade consumed in the car. Pretty ordinary! to 2.30pm. A geographically proximate 12. Le Triskel 32 Hardware Lane, 297 Exhibition Street, have no fixed location. They post mayonnaise. The fish was succulent, option for Saturday lunch or coffee, Melbourne. Open Monday to Thursday Melbourne. Open Monday their intended locations on a daily fresh and perfectly cooked. The kids MR BURGER Back Pocket sells standard café fare from 7am to 6pm; Friday from 7am to to Saturday from 11am to 10pm. Misschu basis via social media (eg Twitter knocked off the chicken taco that .5 Mr Burger was parked and coffee that is a good alternative, 9.30pm; Saturday from 8am to 5pm and Tuckshop’s Exhibition Street branch and Facebook) and make you engage was served with a corn salsa, baby 6 opposite a dark park particularly when time is short. Sunday from 8.30am to 5pm. Located in offers delivery of its famed rice paper with them by tracking them down. spinach and a chipotle chili mayo. The with no other activity Hardware Lane, Le Triskel isn’t too rolls throughout the Melbourne You can readily do so by entering grandfather ate a potato taco that had nearby. It offered three burgers – two far from most barristers’ chambers. CBD via its fleet of electric bicycles. Breakfast, lunch or search terms such as “Melbourne jalapeno ricotta, coleslaw and a salsa meat burgers ($9 and $10) and one But with its French magazines and Orders can be made through its Food Trucks” into Google. This makes verde. He told the kids that it was a bit falafel burger ($9), fries and a limited coffee on a Saturday music, it may feel like a world away. website or over the telephone. In it fun. different to the food he ate as a boy range of soft drinks. We ordered a and a Sunday Le Triskel’s speciality is its range addition to the rice paper rolls, there After a few quick searches, I found when he grew up in Brunswick! “Mr Burger” ($9). It came with a beef 10. Hardware Societe 120 Hardware Street, of Breton-style buckwheat crepes are also Peking duck pancakes, the location and opening hours of pattie, cheese, lettuce, tomato, onion, Melbourne. Open Monday to Friday from known as gallettes. Holding only steamed dumplings, spring rolls two food trucks, Taco Truck and Mr BEATBOX TRUCK pickle, mustard, mayo and tomato 7.30am to 3pm and Saturday and Sunday savoury fillings, they contain a hearty and salads on the menu. For a more Burger. I decided to tackle them The next stop was due east sauce. Very traditional and not much from 8.30am to 2pm. On weekends, range of flavour combinations that substantial meal, a number of dishes 6 both on the same night. A mistake to Mr Burger in Northcote ‘gourmet’ here. I was expecting Hardware Societe only serves make for a satisfying lunch. There is come with rice and steamed greens, perhaps? To enliven the experience, opposite Park. something like, at the very least, brunches and, reflecting the quality also a smaller range of sweet crepes such as the seared Atlantic salmon. and broaden the source of critic, However, on the way, the kids yelled Wagyu beef. The burger was salty, of its dishes, it’s a slightly more on offer. Menulog.com.au I took the kids and the grandparents. out “There’s another one!” Sure oily and saucy and again, as a result, expensive brunch than most. But the 13. Roll’d 15 Hardware Lane, Melbourne. Menulog is a website that offers a enough, there was another food truck delicious. Again, we ate on a bench pride taken in its food is manifest Open Monday to Wednesday from 8am centralised way of ordering food TACO TRUCK in the style of a 1980’s beatbox. Very seat in semi darkness surrounded at every turn – from the coffees that to 9pm and Thursday to Friday from 8am to be delivered to your chambers. Taco Truck was located in cool – after all ‘retro’ is in! by the day’s garbage. come with a small doughnut nestled 9 until late and Saturday and Sunday from Through the website, you can order West Brunswick opposite in the spoon to the banana bread

10am to 5pm. While there is a Roll’d in from a large number of restaurants Brunswick Park. It was illustration by guy shield that proves to be two small loaves OVERALL Goldsborough Lane, it’s the Hardware located in the CBD and surrounding not parked near a shopping strip or with salted caramel filling. Hardware At the conclusion of this culinary journey I just wanted to do some exercise and have a Lane venue that offers the extended areas. nightclub or anything else for that Societe is a well-deserved treat likely long shower. Instead we opted for coffees, ice cream and macaroons at Brunetti’s new trading hours. The fare here is a hip Thanks to the many barristers who matter. to make you feel much better about location in Lygon Street. Much more civilised and had the desired effect of washing café chain style spin on Vietnamese provided suggestions of after-hours It offered three types of tacos – fish, being in the city on a weekend. away the food trucks. A bit like good schnapps! Food trucks? Stick to one food truck hawker-style food, including rice places to eat for this article and chicken and potato, served in a crisp a month and seek the more ‘gourmet’ options such as Taco Truck or others such as 11. RACV Club 501 Bourke Street paper rolls, Vietnamese-French my husband who assisted me in tortilla. These may be ordered as Gumbo Kitchen and White Guy Cooks Thai Mobile Food Truck. Guten Appetite! Melbourne. The bistro is open from baguettes, salads and pho. visiting them.

98 VBN VBN 99 Dusting off the THE BAR Wine Review Archives By Schweinhaxette Quiz 1963 re you having a slow day in chambers? Are Vermintino & Sardines What was the Bar like 50 years ago? A you trying to avoid drafting that overdue statement of Here are some facts from our archives. claim? Fancy yourself at quizzes? t was very hot Thursday night during and not cellared. Buy it and drink it. Crisp, fresh and Whatever your motivation, grab a the Melbourne Food and Wine Festival. clean, and generally un-oaked, it is the perfect wine to pen and test your knowledge of the Chairman of the Bar Council: The Australian Bar Association This was during the post 30 degrees celsius refresh one’s palate on a hot day or balmy evening. Victorian Bar by completing this quiz. Mr MV McInerney QC. celebrated its first birthday. heat wave that baked Melbourne. I was at Vermentino usually has a relatively low alcohol content the Victoria Market at an event promoted (between 11% and 12.5%). This makes it perfect with food Number on the practising list: Sir James Tait QC was awarded 1. Who was the first person to sign as “Vermentino and Sardines”, showcasing and a refreshing drink during a Melbourne summer. 297 members (389 on all lists). a knighthood (the first practising the Bar Roll? about a dozen Vermentino wines from producers in I lined up for my sardines. The sardines were cooked barrister in Victoria to receive 2. The (nearest) percentage of eligible 29 people signed the Bar Roll, only McLarenI Vale, the King Valley and other regions in using a wood fired oven over coals. The person turning the honour) for services to the voters who voted in the 2012 one of whom remains in practice South Australia and Victoria. them was none other than chef Riccardo Momesso. He legal profession. Victorian Bar Council election was: at the Victorian Bar in 2013. Vermentino is a white grape variety. It is primarily is soon to open Valentino in Hawksburn. The sardines a. 24 Two Bar Dinners were held “due to produced in Italy in coastal areas such as on the islands were served in a small cardboard bucket with bread and Miss Anne Curtis was the only female b. 50 the desire to do full honour to all of Sardinia and Corsica and along the coast of Liguria a homemade tomato based sauce. Delicious! However, to sign the Bar Roll (and the eighth c. 34 members of the Bar who had been (ie the Italian Riviera). I like to refer to it as the “sea the plastic fork I received reminded me that I was not woman ever to sign the Roll). d. 61 appointed to judicial office or who had grape”! It’s the perfect partner to seafood – both fish in Cagliari on the island of Sardinia but in a food court 3. In what year, and by whom, was Bar subscriptions were set at: otherwise been honoured by and crustaceans – crispy fried white whitebait or pan- at the Victoria Market. A pity! However, only a minor Owen Dixon Chambers East Queen’s Counsel – £15.15.0 Her Majesty the Queen”. fried whiting fillets with capers and a splash of lemon momentary lull to the Mediterranean vibe. opened? Juniors of more than 3 years standing immediately spring to mind. It’s a wine to be drunk young I tasted many of the Vermentino wines on tasting: The Bar Council and the Committee 4. In what year did the first woman – £12.12.0 of the Victorian Branch of the sign the Victorian Bar Roll? Juniors of not more than 3 years International Commission of 5. Who was the artist commissioned standing – £3.3.0 2012 Mitolo Jurists entertained at luncheon to build the red sculpture in the McLaren Mr Arthur Nicholls retired as a Mr Purshottam Trikamdis (some foyer of Owen Dixon Chambers Vale Jester Barristers’ Clerk after more than time private secretary of the late East? 50 years of service to the Bar. Mahatma Gandhi). 6. What was the name of the first Vermentino chambers? Made from 6 7. What year was the first woman the vineyard’s elected to the Bar Council? Vermentino fruit. Overheard in the foyer of Owen Dixon Chambers East… 8. Who designed the Essoign’s logo? Pale colour. A 2012 BellaRiva King Valley Pinot Grigio Vermentino 9. Who is the current Chair of the massive hit of fruit A De Bortoli wine made with its Pinot Grigio and Vermentino fruit grown in Barrister’s 2 year Bar’s Library Committee? on the palate. A the King Valley. Slightly sweet but still crisp, with not a long finish. That said, old (pointing at red 10. In what year was the first bit too much fruit. a wine to be drunk well chilled and in the moment. sculpture): What is that Victorian Bar News published? May develop more Mummy? 11. What was on the site of Owen subtle flavours over Barrister: It is a sculpture Dixon Chambers East before it the next few years. Toddler: Yes, but what is was built? A clean finish. This it Mummy? 12. What is the name of the BCL wine would suit a .5 Barrister: Well, it’s art… commissionaire who sits at seafood dish such 8 Toddler: Yes, but what the front desk of Owen Dixon as coriander, lime is it Mummy? Chambers East? and chilli steamed Barrister: Good question 13. Who is an essoniator? white fish fillets. darling. Lots of people are 14. How many lists of barristers are 2012 Oliver’s Taranga McLaren Vale Vermentino wondering what on earth it there at the Victorian Bar? Fresh, zesty with the typical Vermentino lick of lemon, and subtle overtones of is. They have been for years! 15. Name the Victorian Bar’s only .5 honey. This Vermentino had more texture and palate weight than the others, What do you think it is? triple Olympian. 7 and complexity. Toddler: A dinosaur! For Quiz answers see page 103

100 VBN VBN 101 Ask Mr Tipstaff

By Ross Bream, Tipstaff

Advice for the common barrister (as well as occasional tips on the last dog race at The Meadows).

Dear Ross, truth is I can’t remember any judge talking instructing solicitors is you should never (May I call you Rosco?) I think about you. And I’ve been with lots. Way trust them to carry your bags. They’re just as I am in love with my instructing back when. The trick is, I reckon, when a likely to run off with them and feed them to solicitor. He is not pretty to look judge says, “Now, Mr DeDwat, when might their children. Vicious people. Animals more at, it’s true. He sniffs all the time you suppose your oral argument will be like. And they live in holes and get rashes. and smokes menthol cigarettes. concluded,” you should take a moment to Be wary. He never responds to requests for realise it’s Friday and 11.55am and at that documents or instructions and it is point you smile, right, and tell them, “Much Dear Mr Tipstaff, possible he may, in fact, be one of gratitude to your Honour for your Honour’s I like to sing. I like to dance. I am the walking dead. I think his jacket astute observation, I happen to know it is a judge of the Supreme Court. It was slept on by a long-haired dog. your Tipstaff’s monthly RSL meeting this is a very serious job. There is no But. But, glory of glories! He pays Friday and that is just by-the-by, but I did singing or dancing on offer as part on time! What should I do? know it, because I am the sort of barrister of my professional duties as far as Barry McFluff what gets things, right, your Honour, and I can ascertain. Any suggestions? I reckon I’d be done in a jiff. About 5. Heck, The Hon Justice “X”. Supreme Court Dear Bazz, let’s say half a jiff.” Then, Den, me old of Victoria. Nope, I don’t give a damn what you bloody mate, I reckon you’d be in with a pretty call me mate. Sheesh. You’re in a real pickle. Dear “X”, good chance. I get it. My first wife was a real stinker. But, Come on “X”, we all know who you are. you know, that’s what Twisties are for (up And really, what are you talking about? Dear Ross Bream, Tipstaff, the shnoz, know what I mean?). I reckon Directions on a Friday, you’re always singing The other day I was carrying my when you’re on to a good thing stick to it and dancing! Least that’s what I reckon I’d brief papers in a leopard skinned mate. Like glue. My advice to you is simple. call it. suitcase (it is made from real Stock up on the Alpine Fresh and engage in leopard) up to court. My instructor charming chit-chat until your tongue gets Dear Mr Tipstaff, only had two archive boxes dry. That’s how we did it in the army. How do I get lipstick off my jabot? to carry but still he would not Gertrude Steinerschool assist. When I got there I told my Dear Rossmoine, instructing solicitor I might have Dear Gerty, I do hope I have understood your Web Design & Custom Publishing Corporate Identity Books App Design & to leave early, as I needed to book This used to happen all the time when I was nom to be the correct plume. It is Development Development my vacation sailing around the getting marching plans ready in the army. difficult for me as I seldom manage Croatian islands. He seemed most My hints are (1) try to avoid using your to hear the names of goodly Court perturbed by my saying this. I told jabot as a napkin after a cocktail. (2) keep officers. Please forgive me. My The Slattery Media Group’s consultancy services are available to individuals and him he was an obstinate brute and smooching gorillas in drag to an absolute question is, when applying for silk, delivered my fee slip immediately. minimum and (3) try soaking it, and all of organisations wishing to engage the skills of industry professionals to ensure their what should I do to ensure a judge You agree with me don’t you? your other white clothes, in Campari. This will be a favourable referee? products are to the highest standards. No project is too big or too small—from Madame Bovary SC way everything will appear a slight pinkish Dennis DeDwat (SC – soon I hope!) magazines to books, websites to App development. Dear Mads, hue and the observer will think it is all in Dear Den, Of course I agree with you. (What was the their own mind. This sort of psychological Contact us today to discuss your options. Blimey mate. This is really tricky. The question? I don’t care.) The thing about chicanery is really underused in my view.

Email [email protected] or call (03) 9627 2600

Paul Guest – Rome 1960; Tokyo 1964; Mexico 1968. Mexico 1964; Tokyo 1960; Rome – Guest Paul 15 14 14 absence court excuses who person A essoigns.

One who essoins / / essoins who One 13 Rutter John 12 Brigade Fire 11 1971 10 SC Marks Samantha 9 Crossley Judge 8 Lewitan) (Rachelle 1982 7 Chambers Selborne 6 Selwood Paul Visit slatterymedia.com 5

1923 (Joan Rosanove) Rosanove) (Joan 1923 4 Menzies Robert Sir 1961, 3 50 b 2 1900 September 21 on judge) Court County a (later Box Burnett John – Box B J 1 ANSWERS: QUIZ BAR THE

VBN 103 And the winners of the Vbn152 caption competition are…

“Richmond Football Club has for the last 12 months secretly tested a radical new boot, as worn by the 2012 Chairman of the Bar Council, Melanie Sloss. At a ceremony today to mark the launch of the new shoe, Vice Chairman of the Bar Council, Will Alstergren announced that the new boot will be worn by Richmond players in the 2013 home and away season, and will be marketed as ‘Superboot’.” Michael Wheelahan SC, Stephen O’Meara SC and Michael Rush

And the runner up is: J D Merralls “Say anything more about the sheila’s sock and the bloke in the mirror will give you one.” CONGRATULATIONS! Wheelahan, O’Meara and Rush will receive a lunch voucher at the Essoign Club to the value of $100. Merralls will receive a runner up voucher of $50 – (judging by value per head, Merralls comes out the winner!). 104 VBN VBN 104

THE START OF A REWARDING JOURNEY FOR VICTORIAN BAR MEMBERS.

Behind the wheel of a BMW or MINI, what was once a typical commute can be transformed into a satisfying, rewarding journey. With renowned dynamic handling and refined luxurious interiors, it’s little wonder that both BMW and MINI epitomise the ultimate in driving pleasure. Recognised by the Dow Jones Sustainability Index as the World’s Most Sustainable Automotive Company for the last eight years, there is more to owning a BMW or a MINI than just pure exhilaration. Just as there is more to the BMW and MINI Corporate Programmes than simply making it easier to own some of the world’s safest, most advanced driving machines. The programmes enhance the entire ownership experience. With a range of special member benefits, they’re our way of ensuring that our corporate customers are given the best BMW and MINI experience possible. BMW Melbourne, in conjunction with BMW Group Australia, is pleased to offer the benefits of the BMW and MINI Corporate Programme to all members of The Victorian Bar, when you purchase a new BMW or MINI. Benefits include:

BMW CORPORATE PROGRAMME. MINI CORPORATE PROGRAMME. Complimentary scheduled servicing for Complimentary scheduled servicing for 4 years / 60,000km 4 years / 60,000km Reduced dealer delivery charges Reduced dealer delivery charges Complimentary use of a BMW during scheduled Complimentary valet service servicing* Corporate finance rates to approved customers Door-to-door pick-up during scheduled servicing A dedicated Corporate Sales Manager at your Reduced rate on a BMW Driver Training course local MINI Garage

Your spouse is also entitled to enjoy all the benefits of the BMW and MINI Corporate Programme when they purchase a new BMW or MINI.

For more information, please email [email protected], or contact Simon Reid or Chris Mayes on (03) 9268 2222 BMW AND MINI CORPORATE PROGRAMME.

BMW Melbourne 118 City Road, Southbank. Tel (03) 9268 2222. www.bmwmelbourne.com.au LMCT 8155 MINI Garage Kings Way 209 Kings Way, South Melbourne. Tel (03) 9268 2222. www.melbourne.minigarage.com.au LMCT 8155

Terms & Conditions apply and can be viewed at bmw.com.au/corporate and mini.com.au/corporate. *Selected models only.

BMW13650_275x210_Vic Bar_FA.indd 1 14/05/13 5:09 PM